Com. v. Crum

• Decision Date: 31 March 1987
• Citation: 362 Pa.Super. 110,523 A.2d 799
• Parties: COMMONWEALTH of Pennsylvania v. Norman P. CRUM, Sr., Appellant. 384 HARRISBURG 1986
• Court: Pennsylvania Superior Court

Page 799

523 A.2d 799

362 Pa.Super. 110

COMMONWEALTH of Pennsylvania v. Norman P. CRUM, Sr., Appellant.

384 HARRISBURG 1986

Superior Court of Pennsylvania.

Argued Feb. 19, 1987.

Filed March 31, 1987.

Charles B. Swigart, Huntingdon, for appellant.

Stewart L. Kurtz, Dist. Atty., Huntingdon, for Com., appellee.

Before WIEAND, OLSZEWSKI and TAMILIA, JJ.

TAMILIA, Judge:

This is an appeal from judgment of sentence entered following a jury trial wherein appellant was convicted of driving under the influence. ¹ Appellant, a first time offender, was sentenced to five (5) days to twenty three (23) months imprisonment.

On May 2, 1985, at approximately 2:25 a.m., State Trooper Richard Kuny observed appellant's vehicle parked along the berm of Pa. Route 26 in Huntingdon County. (N.T., 11/4/85, pp. 10, 11). Trooper Kuny found appellant slumped across the front seat of the car, with the motor running and the lights on. (N.T., 11/4/85, p. 11). Trooper Kuny eventually roused appellant from a deep sleep, and based upon observations of appellant's demeanor, placed him under arrest. (N.T., 11/4/85, p. 13). A subsequent intoxilizer test performed at the Pennsylvania State Police barracks revealed appellant had a blood/alcohol content of 0.19%. (N.T. 11/14/85, p. 13).

Appellant now argues that even if the evidence presented by the Commonwealth was legally sufficient to prove that he was, at the time he was observed by Trooper Kuny, under the influence of alcohol to a degree which rendered him incapable of safe driving, there was not sufficient evidence to prove that he either drove, operated, or was in actual physical control of the movement of a vehicle.

The test for reviewing a sufficiency of the evidence claim on appeal from a criminal conviction is well settled:

[W]hether, viewing the evidence in the light most favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.... 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 trial record must be evaluated and all evidence actually received must be considered ... Finally, the trier of fact, while passing upon the credibility of witnesses and the weight to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted).

Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), citing Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).

Driving Under the Influence of Alcohol or Controlled Substance, 75 Pa.C.S.A. § 3731 (a)(1) provides:

(a) offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:

(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;

As it is not disputed that appellant was under the influence of alcohol, our inquiry must focus upon whether appellant drove, operated or was in actual physical control of the movement of his vehicle. The history of 75 Pa.C.S.A. § 3731 is instructive in this regard.

Section 1037 of the Vehicle Code, Act of April 29, 1959, P.L. 58, formerly 75 P.S. § 1037 provided that "[i]t shall be unlawful for any person to operate a motor vehicle ... while under the influence of intoxicating liquor ..." (emphasis added). In Commonwealth v. Kallus, 212 Pa.Super. 504, 243 A.2d 483 (1968), this Court interpreted the word "operate", as used in the statute, as follows: "it is not necessary that the vehicle itself must be in motion but that it is sufficient if the operator is in actual physical control of either the machinery of the motor vehicle or of the management of the movement of the vehicle itself." Id. at 507, 243 A.2d at 485. In Kallus, the defendant, who was found seated in the driver's seat of the car behind the steering wheel, with the engine running, car in gear, the rear wheels spinning, and the left wheel spinning against the main portion of the highway, was determined to have operated the vehicle for purposes of section 1037.

In 1976, 75 P.S. § 1037 was repealed by 75 Pa.C.S.A. § 3731, as enacted by the Act of June 17, 1976, P.L. 162, § 1. This statute provides, in relevant part, that, "[a] person shall not drive any vehicle while ... under the influence of alcohol...." (emphasis added). In Commonwealth v. Brown, 268 Pa.Super. 206, 407 A.2d 1318 (1979), this Court concluded that since the term "operate" is a broader term than "drive", the legislature intended to limit the scope of the statute when it substituted the term "drive" for the term "operate". Thus we found that "[i]n order to prove that a defendant charged with a violation of § 3731 'drove' a motor vehicle, evidence must be adduced showing that the vehicle was (at the time in question), in fact, in motion." Id. at 211, 407 A.2d at 1320.

This holding was further delineated in Commonwealth v. Matsinger, 288 Pa.Super. 271, 431 A.2d 1043 (1981), wherein the court found that Brown does not require direct evidence of motion, but rather, circumstantial evidence may be sufficient. In applying this standard, the court held that evidence that the defendant was found asleep behind the wheel of his vehicle with the motor running and the car in gear was sufficient to support an inference that the vehicle had been in motion and that appellant had been in control.

In 1982, 75 Pa.C.S.A. § 3731 was amended to the version of the statute we now have before us. 75 Pa.C.S.A. § 3731 (a), as amended by the Act of December 15, 1982, P.L. 1268, § 9 provides that, "[a] person shall not drive, operate, or be in actual physical control of the movement of any vehicle while ... under the influence of alcohol...." Upon review of this version of the statute, it is clear that the legislature intended to expressly broaden the scope of section 3731. The Commonwealth Court, upon passing on the meaning of the phrase "actual physical control of the movement of a motor vehicle", considered this history of 75 Pa.C.S.A. § 3731.

In accordance with the statutory construction principles that effect should be given to all of the words of the law, 1 Pa.C.S. § 1921(a), 1922(2), and that earlier judicial interpretations of terms should be heeded when the legislature includes those terms in a subsequent statute, 1 Pa.C.S. § 1922(4), this court must conclude that the concept "actual physical control" in the present chemical test section conveys the same meaning as that which the Superior Court had accorded to the concepts of operating and having physical control--as involving control of the movements of either the machinery of the motor vehicle or of the management of the vehicle itself, without a requirement that the entire vehicle be in motion.

Commonwealth v. Farner, 90 Pa.Commw. 201, 205, 494 A.2d 513, 515-516 (1985).

Additionally, the concept of "actual physical control" has recently been embodied in the Pennsylvania Suggested Standard jury instructions for driving under the influence of alcohol.

[ (2) The crime of driving under the influence can be committed not only by a person who drives but also by one who "operates" or is "in actual physical control of the movement" of a vehicle. A person does not drive unless he actually has the vehicle in motion, however, a person may operate or be in actual physical control of the movement of a standing vehicle. These terms are more comprehensive than the term drive. (They cover certain situations where a person under the influence is a threat to public safety even though he is not driving at the time.) Thus a person operates a vehicle if he is in actual physical control of either the machinery of the motor vehicle or the movement of the vehicle itself.]

Pa.SSJI (Crim.) 173731.

We find that since the jury could have reasonably found appellant to be in violation of the earlier versions of the statute, there is no doubt appellant can be convicted under the present statute. The amended version of 75 Pa.C.S.A. § 3731 is much broader than the version applied in Matsinger. The facts of the instant action are sufficient to support an inference that appellant was in control of either the machinery of the motor vehicle or the management of the motor vehicle itself, despite the fact that appellant's vehicle was not observed in motion.

Appellant next argues that the presumption of being under the influence, arising from a blood/alcohol test result of 0.10 per cent or greater, has been eliminated by the 1982 amendments to the vehicle code. Thus, appellant contends it was error for the court below to instruct the jury that a test result of 0.10 per cent or more required them to find that he was under the influence, when he was only charged with section 3731(a)(1) and not section 3731(a)(4).

The lower court, in its charge to the jury, stated, inter alia:

Any person who has alcohol by weight in their blood of .10 or more, under those circumstances, the test result requires you to find that the defendant was under the influence of alcohol. What this means is that the test result, if accepted by you as accurate and reliable, is conclusive evidence that the defendant was under the influence of alcohol and requires you to so find. (Emphasis added).

(N.T. 11/5/85, p. 46).

The court below maintains that its comments to the jury "did not amount to a presumption, but rather a permissible inference that defendant was under the influence." (Slip Op., Taylor, J., 9/5/86, p. 8).

Under 75 Pa.C.S.A. § 1547(d)(3), Presumptions From Amount of Alcohol, if chemical testing of a person's breath, blood or urine shows:

(3) That the amount of alcohol by weight in the blood of the person tested is 0.10% or more, this fact may be introduced into evidence if the person is charged with violating section 3731. (Emphasis added).

Pursuant to the pre-1982 version of 75 Pa.C.S.A. § 1547(d)(3),...