Com. v. Woodruff

CourtSuperior Court of Pennsylvania
Citation668 A.2d 1158,447 Pa.Super. 222
PartiesCOMMONWEALTH of Pennsylvania v. Verne R. WOODRUFF, Appellant.
Decision Date19 December 1995

Helen A. Haglich, Assistant Public Defender, Towanda, for appellant.

Stephen G. Downs, Jr., Assistant District Attorney, Towanda, for Commonwealth, appellee.

Before DEL SOLE, FORD ELLIOTT and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

This appeal is from an order sentencing appellant entered in the Court of Common Pleas of Bradford County on August 1, 1994. We affirm.

On June 24, 1994, appellant Verne Woodruff was tried and found guilty by a jury of driving under the influence of alcohol (3 counts), 1 simple assault, 2 and disorderly conduct. 3 In addition, appellant was found guilty by the court of the summary offenses of harassment, 4 use of multiple beam lighting equipment, 5 and restriction on consumption of alcoholic beverages. 6 Then, on August 1, 1994, appellant was sentenced to a total of one to four years of imprisonment, 7 and ordered to pay fines and statutory costs, and to undergo drug and alcohol treatment. This appeal follows.

On appeal, appellant raises two issues: (1) whether the evidence was sufficient to support the conviction of driving under the influence of alcohol and (2) whether the trial court's instruction to the jury regarding "actual physical control of the movement of a motor vehicle" for such crime was proper. We hold the evidence to be sufficient and the jury instruction proper, and thus affirm the order sentencing appellant.

Appellant's first claim, that the evidence was insufficient to support his conviction of driving under the influence, fails. In reviewing a sufficiency claim, our standard of review is well settled:

We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was proven beyond a reasonable doubt. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of evidence.

Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), aff'd, 531 Pa. 42, 611 A.2d 175 (1992); see also Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992).

The evidence, viewed in the light most favorable to the Commonwealth, is as follows: On the evening of April 14, 1993, appellant purchased between twelve and twenty-four cans of beer at Friedenshutten, a combination restaurant and convenience store. Then, appellant drank several of the cans of beer and apparently passed out. In the early hours of April 15, 1993, appellant was found in his automobile along the side of Route 6 in Wyalusing Township, Pennsylvania. A member of a volunteer ambulance crew found him in a semi-slumped position, smelling of alcohol. The automobile was located approximately fifty yards west of the Friedenshutten. The ambulance crew member notified the police and watched appellant until the police arrived. State police troopers Kern and Salandro arrived on the scene at approximately 1:15 a.m. to find appellant's vehicle on the paved berm (4 to 5 feet in width) of the road, with the driver's side tires protruding over the fog lines into the lane of traffic by approximately one tire-length. The engine of the automobile was running and its high beam lights were activated. Appellant was seated behind the steering wheel, slumped down with his chin on his chest, and sleeping. Further, the officers noted that between 12 and 24 beer cans were located in the car, some empty, some full. Accordingly, the officers had to rouse appellant several times in order for him to respond to their questions.

After appellant had awakened, he required assistance to emerge from the car. Appellant's eyes were bloodshot, his speech was slurred, and his gait was unsteady. Then, appellant was given and failed two field sobriety tests. Hence, the officers placed appellant under arrest for Driving Under the Influence of Alcohol. After appellant was placed under arrest, the police asked appellant whether he wanted one of the officers to move his automobile immediately or have it towed to another location later, because it presented a hazard to other motorists. Appellant elected for the officers to move his car at that moment. Accordingly, Officer Salandro removed the automobile from the berm of the road and drove it across the road to a large gravel parking lot. 8 Next, the officers took appellant to Memorial Hospital in order to test his blood-alcohol level. Before appellant's blood was drawn, he struggled as he was un-handcuffed and kicked a nurse in her leg and stomach. Appellant's blood was subsequently drawn at 2:05 a.m. and found to include .24% alcohol by weight. 9 After appellant's blood was drawn, he resisted police efforts to re-handcuff him and kicked Trooper Kern in the groin area before he could be subdued.

Appellant challenges the sufficiency of evidence with respect to the "actual physical control" element of the driving under the influence of alcohol crime. Appellant was convicted of the following three subsections of 75 Pa.C.S.A. § 3731, Driving Under the Influence of Alcohol:

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

(1) while under the influence of alcohol to a degree which renders the person incapable of safe driving (4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater; or

(5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person's breath, blood or urine, which sample is:

(i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle.

75 Pa.C.S.A. § 3731(a)(1), (4), (5)(i). Each of the above subsections requires that the Commonwealth prove two elements beyond a reasonable doubt: (1) defendant was driving, operating or in actual physical control of the automobile (2) while he was under the influence of alcohol that rendered him incapable of safe driving or if his blood alcohol level is 0.10% or greater while driving or within 3 hours thereafter. Id.; Commonwealth v. Byers, 437 Pa.Super. 502, 505, 650 A.2d 468, 469 (1994); Commonwealth v. Proctor, 425 Pa.Super. 527, 530, 625 A.2d 1221, 1223 (1993), alloc. denied, 535 Pa. 661, 634 A.2d 223 (1993). Appellant does not contest the sufficiency of the evidence concerning the second element of the three counts for which he was convicted, 10 but rather questions the sufficiency of the evidence under the first element which is common to each subsection, i.e., that he was driving, operating or in actual physical control of the automobile. We disagree.

We find that appellant was in "actual physical control" under the statute when he was found by the police. 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. Byers, 437 Pa.Super. at 505, 650 A.2d at 469. More specifically, the suspect location of an automobile "supports an inference that it was driven, ... a key factor in the finding of actual control." Id. Appellant was found sleeping in his automobile on the berm of a road, with the engine running and his high beam lights activated, while a portion of his car encroached upon the road. Further, he was not found in the parking lot of the Friedenshutten where he purchased the alcohol, but alongside the road, away from such establishment. The facts of the instant case are analogous to Commonwealth v. Crum, 362 Pa.Super. 110, 523 A.2d 799 (1987), where we held that the defendant had "actual physical control" where he was found slumped across the front seat of his car which was located on the berm of a road, with the motor running and the lights on. Id. In Crum, we also noted that no observation was necessary that the defendant's car was in motion. Id. at 113, 523 A.2d at 801. Further, in Commonwealth v. Leib, 403 Pa.Super. 223, 588 A.2d 922 (1991), we held evidence sufficient to find that defendant had "actual physical control" of his vehicle where he was found asleep behind the wheel of his vehicle located in the middle of a road, with his keys in the ignition. Id. The facts of the instant case mirror these cases with respect to the finding of "actual physical control" since appellant was found sleeping at the wheel of his car, with the engine running while the car was located on the berm of the road. Consequently, we hold that there was sufficient basis under the above factors for the jury to have reasonably found that appellant was in control of his automobile while driving under the influence of alcohol as prohibited by 75 Pa.C.S.A. § 3731(a)(1), (4) and (5)(i). Crum, supra, Leib, supra.

Appellant argues, however, that Byers requires us to find otherwise. In Byers, we held that the evidence was not sufficient to find "actual physical control" where the defendant was found intoxicated inside his automobile, which was located in the bar parking lot where he purchased his alcohol, with the engine running and the headlights turned on. Byers, 437 Pa.Super. 502, 650 A.2d at 468. The defendant in Byers did not move the car from the parking lot where he had been drinking and thus did not pose a threat to public safety. Id. [447 Pa.Super. 230] at 507, 650 A.2d at 470. The facts of the instant case, however, are clearly distinguishable as appellant was found in his automobile along the side of a road, away from the establishment where he had purchased the beer. Therefore, we may infer that appellant drove his car to the spot where he was eventually found by the police while under the influence of...

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20 cases
  • Com. v. Williams
    • United States
    • Pennsylvania Superior Court
    • March 18, 2005
    ...the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle." Commonwealth v. Woodruff, 447 Pa.Super. 222, 668 A.2d 1158, 1161 (1995). A determination of actual physical control of a vehicle is based upon the totality of the circumstances. Commonwe......
  • Com. v. Williams
    • United States
    • Pennsylvania Superior Court
    • January 3, 2008
    ...of the vehicle, and additional evidence showing that the defendant had driven the vehicle." Id. (quoting Commonwealth v. Woodruff 447 Pa.Super. 222, 668 A.2d 1158, 1161 (1995)). The Commonwealth, can establish that a defendant had "actual physical control" of a vehicle through wholly circum......
  • Commonwealth v. Williams, 2005 PA Super 105 (PA 3/18/2005)
    • United States
    • Pennsylvania Supreme Court
    • March 18, 2005
    ...running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle." Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa.Super. 1995). A determination of actual physical control of a vehicle is based upon the totality of the circumstances. Commonwe......
  • State v. Dawley
    • United States
    • Arizona Court of Appeals
    • November 15, 2001
    ...See Bodner v. State, 752 A.2d 1169 (Del. Supr.2000); State v. Robison, 281 Mont. 64, 931 P.2d 706 (1997); Commonwealth v. Woodruff, 447 Pa.Super. 222, 668 A.2d 1158 (1995); Pearson, supra, § 4. Our supreme court no longer "recommends" jury instructions. See Introductory Note to Arizona Revi......
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