Com. v. Bombaro, D.

J-S79027-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL BOMBARO,
Appellant No. 932 EDA 2014
Appeal from the Judgment of Sentence of March 12, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014488-2013
BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 28, 2015
Appellant, Daniel Bombaro, appeals from the judgment of sentence
entered on March 12, 2014, following his bench trial convictions for three
counts of driving under the influence (DUI) of alcohol, a controlled
substance, and a combination of a controlled substance and alcohol.1 Upon
review, we affirm.
The trial court aptly summarized the facts of this case as follows:
In response to a radio call, on April 18, 2013 at
approximately 6:46 [p.m.] [in] the area of 429 West
Susquehanna Avenue, Officer Nelson Leon observed
[Appellant] inside a white Honda Sonata. Susquehanna
Avenue is a large one lane street, and [Appellant] was
parked to the right side of the street against the curb. The
car was parked at an angle facing towards the street with
____________________________________________
1
75 Pa.C.S.A. §§ 3802(a)(1), (d)(1), and (d)(3), respectively.
*Retired Senior Judge assigned to the Superior Court.
J-S79027-14
the windows rolled up. The keys were in the ignition and
the car was running. [Appellant] was behind the driver’s
seat, unconscious, and slumped over towards the
passenger’s seat. He was also sweating profusely. Inside
the car, Officer Leon observed a syringe wrapper in
[Appellant’s] hand and also a needle on the floor of the
passenger side. [Appellant] failed to wake up even after
Officer Leon knocked on the window a couple of times.
Officer Leon then opened the door and shook him to wake
him up. However, [Appellant] did not wake up until the
medics came.
Once [Appellant] woke up, Officer Leon asked him a few
questions, but [Appellant] had trouble answering them. His
speech was slurred and muffled. Officer Leon then asked
him if he consumed drugs or alcohol, and [Appellant]
informed the [o]fficer that he had used heroin earlier that
day. [Appellant] was unable to maintain his balance after
he exited the vehicle and needed the support of Officer Leon
to remain standing. At that point, he was placed under
arrest for DUI.
Trial Court Opinion, 6/16/2014, at 1-2.
Procedurally, the case progressed as follows:
On March 12, 2014, [Appellant] was found guilty of [the
aforementioned counts of DUI]. He was sentenced to 72
hours to 6 months of incarceration, and was further ordered
to participate in drug or alcohol screening and treatment
programs, including outpatient and inpatient programs. His
license was suspended for a year, and he was ordered to
participate in Highway Safety School. [Appellant] was
paroled immediately after serving 72 hours.
Defense counsel filed a timely appeal on March 28,
2014. [On May 14, 2014, the trial court ordered Appellant
to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).] [Appellant’s] [s]tatement of
[e]rrors complained [of] on [a]ppeal was filed on June 3,
2014. [The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on June 16, 2014.]
Id. at 1.
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On appeal, Appellant presents the following issue for our review:
Was not the evidence insufficient to convict [A]ppellant of
driving under the influence of a controlled substance where
the Commonwealth failed to prove that [A]ppellant had
actual, physical control of the vehicle?
Appellant’s Brief at 3.
Appellant claims that there was insufficient evidence presented to
prove he was in physical control of the vehicle in question. More specifically,
he claims:
[T]here was a reasonable inference that [A]ppellant did not
drive to the area under the influence, but rather drove to
the area sober, bought drugs in the neighborhood, and
returned to the car where he ingested the drugs in his car,
as evidenced by the syringe found in his hand and the
needle found in the car.
Id. at 14. Appellant contends that the fact that he “started the parked car,
without more, [was] not enough to prove actual physical control.” Id. at 12.
Appellant relies upon our 1994 decision in Commonwealth v. Byers, 650
A.2d 468 (Pa. Super. 1994) for the proposition that the car’s location
negated any inference that the car had been moved. Id. at 13-14.
When reviewing a sufficiency of the evidence claim, our standard of
review 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
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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. Karns, 50 A.3d 158, 161 (Pa. Super. 2012) (citation
omitted).
Appellant was convicted of three counts of DUI. The relevant statutory
provisions provide:
(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.
* * *
(d) Controlled substances.--An individual may not drive,
operate or be in actual physical control of the movement of
a vehicle under any of the following circumstances:
(1) There is in the individual's blood any amount of a:
(i) Schedule I controlled substance, as defined in the
act of April 14, 1972 (P.L. 233, No. 64), known as
The Controlled Substance, Drug, Device and
Cosmetic Act;
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(ii) Schedule II or Schedule III controlled substance,
as defined in The Controlled Substance, Drug,
Device and Cosmetic Act, which has not been
medically prescribed for the individual; or
(iii) metabolite of a substance under subparagraph (i)
or (ii).
* * *
(3) The individual is under the combined influence of alcohol
and a drug or combination of drugs to a degree which
impairs the individual's ability to safely drive, operate or be
in actual physical control of the movement of the vehicle.
75 Pa.C.S.A. § 3802 (footnote omitted). There is no dispute that heroin is a
controlled substance covered under Subsection 3802(d).
Here, Appellant contends that there was insufficient evidence that he
was operating, or in physical control of, the vehicle in question. Our Court
has determined:
The term “operate” requires evidence of actual
physical control of the vehicle to be determined based upon
the totality of the circumstances. 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. The Commonwealth can establish
that a defendant had “actual physical control” of a vehicle
through wholly circumstantial evidence.
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (citations
omitted).
Our decision in Commonwealth v. Toland, 995 A.2d 1242 (Pa.
Super. 2010) is instructive. In that case,
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the evidence established that [Toland] was asleep in the
driver's seat of the vehicle with the motor running and the
headlights illuminated. There was a cold, unopened six-pack
of beer on the floor behind the driver's seat. [Appellant’s car
was found, as] described in the affidavit of probable cause
[parked in front of] a “store” and there is no indication that
it sells alcoholic beverages. A reasonable inference could be
made that [Toland] drove to that location. Although
circumstantial, the evidence was sufficient for the trial court
to conclude, as the finder of fact, that [Toland] was in
actual physical control of the movement of the motor
vehicle.
Toland, 995 A.2d at 1246.
Moreover, in Toland, we distinguished our earlier decision in Byers:
In [Byers], [Byers] was discovered sleeping in the
driver's seat of a parked car. The car was sitting in the
parking lot of the Twin Rocks Lounge, a drinking
establishment. The engine was running and the headlights
were on, but the car was not in motion. On these facts, a
panel of this [C]ourt held that the Commonwealth did not
introduce enough evidence to show actual physical control.
We held that the Commonwealth must show some
additional facts to demonstrate that an intoxicated
defendant is a danger to public safety beyond merely
starting a parked car. After noting that the purpose of the
drunk driving laws is to keep intoxicated drivers off of the
road and to protect the public at large, the Byers court
stated: “In the present case, Byers never got onto the road
and was not a threat to public safety. The Commonwealth is
trying to encourage intoxicated people to ‘sleep it off’ before
attempting to drive, yet it wants us to punish Byers for
doing just that.” [Byers,] at 471.
While not overruled, the approach in Byers was strongly
criticized by the Pennsylvania Supreme Court in
Commonwealth v. Wolen, 685 A.2d 1384 (Pa. 1996)
(plurality):
Under the circumstances of [Byers], the Superior
Court held that there were insufficient facts to prove
that the defendant posed a safety hazard to the
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public, and therefore the Commonwealth had failed
to establish that he was in actual physical control of
the vehicle. Byers, 650 A.2d at 470. 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. Id. at 471. 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. Although Wolen, as a
plurality decision, is not binding on this court, the
soundness of the reasoning in Byers has been called into
question.
At any rate, Byers is distinguishable on its facts [from
Toland]. In [Byers], the defendant had not moved his car
from the private parking lot of the bar where he had been
drinking. Byers, 650 A.2d at 470. [In Toland], the
defendant was parked on a public street in front of a store.
While it is unclear from the record where [Toland] had been
drinking prior to his arrest, appellant was not sitting in the
parking lot of a bar, as in Byers. As the trial court states,
the presence of a cold, unopened six-pack of beer in
[Toland’s] car indicates that he was not “sleeping it off” but
intended to drive his vehicle to his home or some other
location to continue drinking and become even more
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intoxicated. Assuming Byers remains good law, it is
factually inapposite and [Toland’s] reliance on it is
misplaced [and his] sufficiency claim fails.
Commonwealth v. Toland, 995 A.2d 1242, 1246-47 (Pa. Super. 2010)
(some citations and quotations and original brackets omitted).
In this case, the trial court concluded that Appellant was in actual
physical control of the vehicle, opining:
Under the totality of the circumstances, [Appellant] was
clearly in “actual physical control” of the vehicle. Officer
Leon found [Appellant] unconscious and slumped over
towards the passenger side of the vehicle. [Appellant]
parked the car in a high drug area, with the keys in the
ignition and the car running. The car was parked at an
angle instead of being parked straight against the curb. As
[precedent indicates], when the location of the vehicle is in
a suspect location, a red flag is to be raised. [Appellant]
even testified that he pulled off after an emotional situation
with his former wife and was going through Northern
Liberties, which is an area in Philadelphia. The
circumstantial evidence does not support the idea that
[Appellant] sat in a parked car there just to “cool off” after
a heated argument. Instead, all evidence points to the
conclusion that he was driving under the influence before he
decided to park.
Trial Court Opinion, 6/16/2014, at 5 (footnote and record citations omitted).
Initially we note that in the case sub judice, Appellant argues the facts
in the light most favorable to himself, in contravention of our standard of
review. Moreover, the facts of this case more closely resemble those as
presented in Toland, rather than Byers. Appellant was found unconscious
behind the wheel of a car, the engine was running, and the car was parked
slightly askew on the street in a residential neighborhood. In Byers, the
facts presented showed Byers had been imbibing in alcohol in a particular
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location and had passed out before moving his car from the drinking
establishment’s parking lot. Here, however, as in Toland, it is unclear from
the record where Appellant partook of the heroin. However, based upon the
totality of the circumstances viewed in the light most favorable to the
Commonwealth as the verdict winner, we agree that there was sufficient
evidence to support Appellant’s convictions. More specifically, the car was
parked at a slight angle on a city street with the engine running and
Appellant was found unconscious in the driver’s seat. See N.T., 3/25/2014,
at 11, 13-14. Appellant had a syringe wrapper in his hand and there was a
hypodermic needle found on the floor of the rear passenger side. Id. at 16-
17. Appellant admitted to using heroin earlier that day. Id. at 11. Unlike in
Byers, here there was no reliable indicia that Appellant used intoxicating
substances and merely got into the vehicle to sleep it off. Thus, we agree
with the trial court that there was sufficient evidence to support Appellant’s
DUI convictions.
In addition, we note that at trial Appellant stipulated that his blood
alcohol level showed he was intoxicated. Id. at 20-21. There was
absolutely no evidence to suggest that Appellant had imbibed any alcohol
after parking his vehicle. The investigating officer did not testify to seeing or
recovering any open or empty containers from the vehicle. Accordingly, the
Commonwealth circumstantially proved that Appellant ingested alcohol
before driving. Thus, for this alternative reason, we affirm Appellant’s
general impairment conviction under 74 Pa.C.S.A. § 3802(a)(1). See
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Commonwealth v. O'Drain, 829 A.2d 316, 322 (Pa. Super. 2003) (“We
note that this court may affirm the decision of the trial court if there is any
basis on the record to support the trial court's action; this is so even if we
rely on a different basis in our decision to affirm.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
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