Com. v. Nunez-Avalos, J.

J-S22010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE LUIS NUNEZ-AVALOS :
:
Appellant : No. 1879 MDA 2018
Appeal from the Judgment of Sentence Entered October 25, 2018
In the Court of Common Pleas of Adams County Criminal Division at
No(s): CP-01-CR-0001417-2017
BEFORE: SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 14, 2019
Appellant, Jose Luis Nunez-Avalos, appeals from the judgment of
sentence entered following his convictions for driving under the influence of
alcohol (“DUI”) general impairment, DUI highest rate of alcohol, and driving
without a license.1 We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
Testimony developed at the non-jury trial held on
August 21, 2018[,] revealed the following events occurred. On
November 7, 2017[,] at approximately 4:09 p.m.,
Trooper Manivong of the Pennsylvania State Police was dispatched
to the area of 122 Kime Avenue in Bendersville Borough, Adams
County, Pennsylvania[,] for a report of a possible intoxicated
driver that had picked up children.4 Upon arrival at 122 Kime
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1 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(c) with enhancements under
75 Pa.C.S. §§ 3804(c.1) and 3803(b)(5); and 75 Pa.C.S. § 1501(a).
Sentencing Order, 10/30/18, at 1.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Avenue, Trooper Manivong observed a tan Ford F150 pickup
parked partially on Kime Avenue with its break lights illuminated.5
Trooper Manivong approached the driver’s side of the vehicle,
observed the engine running, and identified Appellant as the
driver.
4 Trooper Laythong Manivong is a Pennsylvania State
Trooper with ten (10) and a half years of experience
as a law enforcement officer. Trooper Manivong has
training in criminal law, traffic law, Standard Field
Sobriety Test (“SFST”), and has taken the Advanced
Roadside Impairment Driving Course (“ARIDE”).
Trooper Manivong has handled over one hundred DUI
arrests in his career.
5 Kime Avenue is an undivided two lane road at that
location.
Trooper Manivong made contact with Appellant and asked
Appellant “Sir, are you here to pick up children?”6 There were two
minor children located in the back seat of the vehicle. The children
were not properly restrained by a child car seat or youth car seat.7
Trooper Manivong detected an odor of alcohol emanating
from Appellant while speaking with him. Trooper Manivong
observed Appellant was lethargic and had glassy red eyes.
Trooper Manivong escorted Appellant’s children from the vehicle
to the nearby home of Appellant’s estranged wife. Trooper
Manivong then instructed Appellant to shut off and exit the
vehicle. Appellant told Trooper Manivong he could not find his
driver’s license and did not produce a driver’s license during his
interaction with Trooper Manivong.8
6Appellant did not have a fixed address. His estranged
wife had a Protection from Abuse order against him at
the time. Appellant was residing at a temporary
address.
7 The exact age of the children was not testified to.
Trooper Manivong testified the children were under
the age of 18 and needed child restraint seats.
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8 At trial, Trooper Manivong testified he was still
unable to determine if Appellant has a valid driver’s
license.
Trooper Manivong had Appellant perform the one-leg stand
and the walk-and-turn test. When asked to perform the one-leg
stand, Appellant indicated he understood the instructions.
Trooper Manivong observed several indicators of intoxication
during the one-leg stand test. Next, Appellant was asked to
perform the walk-and-turn test. Appellant indicated that he
understood the instructions and attempted to perform the test.
Appellant failed to successfully perform or complete the walk-and-
turn test. Based on his observations and interaction with
Appellant, Trooper Manivong determined that Appellant was
intoxicated to a degree that rendered Appellant incapable of safely
operating a motor vehicle. Trooper Manivong placed Appellant
under arrest for DUI.9
Trooper Manivong transported Appellant to Gettysburg
Hospital for a blood draw. Appellant consented to a blood draw,
which was conducted at 5:22 p.m. The blood was sealed in a
blood kit and sent for testing. A stipulated lab report, admitted
as Commonwealth’s Exhibit 1, indicated Appellant had a blood
alcohol content of .233 percent.10
This [c]ourt found Appellant guilty of all charges. On
October 25, 2018, this [c]ourt sentenced Appellant to twenty[-
]four months in the intermediate punishment program with 120
days restrictive intermediate punishment.11, 12 On November 14,
2018, Appellant timely filed his Notice Of Appeal. On November
19, 2018, this [c]ourt ordered Appellant to file a concise statement
of matters complained of on appeal. Appellant timely filed his
Concise Statement on December 4, 2018.
9 A DVD recording of the MVR in Trooper Manivong’s
patrol car was played for this [c]ourt. The recording
was admitted as Commonwealth’s Exhibit 2.
Approximately 12 minutes of the MVR was played at
trial and corroborated Trooper Manivong’s testimony.
10There was a stipulation that Appellant had already
received ARD for a prior DUI in Adams County and this
was a second offense DUI for mandatory sentencing
purposes.
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11Count one merged with count two for sentencing
purposes.
12The restrictive intermediate punishment portion of
the sentence consisted of 60 days at the work release
facility of the Adams County Adult Correctional
Complex and 60 days to be served on house arrest
with electronic monitoring. Appellant was also
sentenced to a mandatory 100 hours of community
service as well as applicable fines and costs.
Trial Court Opinion, 12/13/18, at 1-3. The trial court filed its opinion pursuant
to Pa.R.A.P. 1925(a).
On appeal, Appellant presents the following issue for our review:
“Whether the evidence presented at trial was sufficient to prove beyond a
reasonable doubt that [Appellant] was in actual physical control of the
movement of the vehicle?” Appellant’s Brief at 7. Appellant asserts that at
the time of his encounter with Trooper Manivong, Appellant’s vehicle was
parked near the side of a street in a residential neighborhood. Id. at 12.
Appellant acknowledges that “the engine was running and [Appellant’s] two
minor children were seated, unrestrained, in the backseat.” Id. Appellant
maintains that the Commonwealth did not produce credible evidence that he
was observed driving prior to his apprehension. Id. Instead, Appellant
counters, the evidence was consistent with his using the vehicle for shelter.
Id. at 14. Appellant argues that case law makes clear that “it is not a crime
to merely sit in a car while intoxicated.” Id. at 15. Appellant argues that
because the evidence falls short of the “proof beyond a reasonable doubt”
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standard, the convictions should be vacated and Appellant should be
discharged. Id.
The standard for evaluating sufficiency claims is as follows:
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.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).
A violation for DUI pursuant to 75 Pa.C.S. § 3802(a)(1) is defined as
follows:
(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.
75 Pa.C.S. § 3802(a)(1). 75 Pa.C.S. § 3802(c) further provides:
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(c) Highest 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 0.16%
or higher 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(c).
“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, 263 (Pa. Super. 2003).
Our precedent indicates that a combination of the following factors
is required in determining whether a person had “actual physical
control” of an automobile: the motor running, the location of the
vehicle, and additional evidence showing that the defendant had
driven the vehicle. A determination of actual physical control of a
vehicle is based upon the totality of the circumstances. 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. Williams, 871 A.2d 254, 259 (Pa. Super. 2005) (internal
citations omitted).
This Court addressed a similar claim in Williams, where the defendant
was convicted of two counts of DUI. Williams, 871 A.2d at 257. In that case,
the defendant argued that the evidence was insufficient to support his DUI
convictions because the Commonwealth failed to establish that he was in
“actual physical control” of the vehicle while intoxicated because the vehicle
was off the roadway and was not moving. Id. at 258. The trial evidence
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disclosed that police found the defendant at 4:00 a.m. in his car with the
headlights and radio on and the engine running; the car was parked diagonally
across two handicapped spaces in front of an establishment that did not serve
alcoholic beverages; the defendant’s employer owned the car, and only the
defendant had permission to drive it; and the defendant was in the driver’s
seat with his hands and head on the steering wheel. Id. at 260-261. The
defendant showed visible signs of intoxication, admitted drinking, failed
several field sobriety tests, and had a BAC of .138%. Id. at 261. The court
specifically rejected as incredible the defendant’s defense that someone else
had been driving the vehicle. Id. This Court agreed with the trial court’s
conclusion that the evidence was sufficient to establish that the defendant was
in actual control of a motor vehicle while intoxicated. Id.; see also
Commonwealth v. Yaninas, 722 A.2d 187, 188-189 (Pa. Super. 1998)
(court found the appellant was in actual physical control of vehicle for
purposes of DUI conviction where appellant was found behind wheel of vehicle,
on the berm of a highway, with engine running and lights on, despite the car
not moving).
In addressing Appellant’s issue, the trial court provided the following
analysis:
Upon arriving at 122 Kime Avenue, Trooper Manivong
observed Appellant’s vehicle parked partially in the lane of travel
on Kime Avenue with its break lights illuminated and engine
running. Trooper Manivong approached Appellant’s vehicle and
observed Appellant in the driver’s seat. When asked what
Appellant was doing there, Appellant replied he was there to pick
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up his children, who were located in the back seat of Appellant’s
vehicle. Appellant’s vehicle was parked near his estranged wife’s
residence. Appellant does not reside with his estranged wife, and
she had a Protection from Abuse order against Appellant at the
time. These circumstances support an inference Appellant was in
actual physical control of his vehicle when Trooper Manivong had
contact with Appellant and that Appellant had driven his vehicle
to 122 Kime Avenue shortly before Trooper Manivong arrived on
the scene.
Trial Court Opinion, 12/13/18, at 6.
We agree with the trial court’s conclusion. Here, the totality of
circumstances established that Appellant was in actual physical control of the
vehicle. The record reflects that when Trooper Manivong approached
Appellant’s vehicle, it was parked partially in the lane of travel on Kime Avenue
with its break lights illuminated and engine running. N.T., 8/21/18, at 6-7,
20. Appellant was in the driver’s seat of the vehicle. Id. Appellant, who did
not live nearby, informed Trooper Manivong that he was there to pick up his
children, who were at the time in the backseat of the vehicle, unrestrained.
Id. at 7-8, 21, 24. Thus, as the trial court found, the totality of circumstances
supports the conclusion that Appellant was in actual physical control of the
vehicle.2 Furthermore, as is made clear by case law and contrary to
Appellant’s assertion, there is no requirement that Appellant actually be
observed driving the vehicle for a determination to be made that he was in
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2 Appellant does not challenge the fact that he was intoxicated.
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actual physical control of the vehicle for purposes of the DUI statute. 3
Johnson, 833 A.2d at 263. Appellant is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/14/2019
____________________________________________
3 Appellant relies on Commonwealth v. Byers, 650 A.2d 468, 469 (Pa.
Super. 1994), in support of his claim, and argues that Byers stands for the
proposition that “actual physical control” requires “at a very minimum, a
parked car should be started and running before a finding of actual physical
control can be made.” Appellant’s Brief at 12. As the record reflects, in this
case the vehicle’s engine was on, the vehicle was parked partially in the
roadway, Appellant was in the driver’s seat, and the brake lights were on
indicating that Appellant had his foot on the brake pedal. Thus, the factors in
this case creating an inference that Appellant was in actual physical control of
the vehicle exceed the minimum evidentiary factors Appellant maintains must
exist pursuant to Byers.
We further note that, while not overruling Byers, the Pennsylvania Supreme
Court strongly criticized it in Commonwealth v. Wolen, 685 A.2d 1384 (Pa.
1996) (plurality): “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.” Id. at 1386 n.4.
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