Commonwealth v. Williams, 2005 PA Super 105 (PA 3/18/2005)
| Decision Date | 18 March 2005 |
| Docket Number | No. 1641 WDA 2003.,1641 WDA 2003. |
| Citation | 2005 PA Super 105 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. ANTHONY B. WILLIAMS, Appellant |
| Court | Pennsylvania Supreme Court |
Appeal from the Judgment of Sentence June 11, 2003 In the Court of Common Pleas of Allegheny County Criminal, No. 2002-10819.
Before: HUDOCK, GANTMAN, and POPOVICH, JJ.
OPINION BY GANTMAN, J.:
¶ 1 Appellant, Anthony Williams, asks us to review his judgment of sentence imposed in the Allegheny County Court of Common Pleas, following his conviction on two counts of driving under the influence of alcohol ("DUI").1 Specifically, Appellant challenges the sufficiency of the evidence and the legality of his sentence. Under the circumstances of this case, we hold the evidence was sufficient to support Appellant's DUI convictions. We further hold that the court erred when it imposed separate sentences under Section 3731(a)(1) and (a)(4)(i), for Appellant's single act of driving under the influence. Accordingly, we vacate Appellant's judgment of sentence and remand for re-sentencing.
¶ 2 The trial court opinion sets forth the relevant facts of this case as follows:
On April 27, 2002, at approximately 4:00 a.m., Officer Jones of the Edgeworth Police Department was dispatched to the Edgeworth Eat 'n Park to investigate a possible DUI. When Officer Jones arrived, he observed a silver Intrigue parked diagonally in the handicapped parking zone, taking up two spaces. Officer Jones approached the vehicle and saw [Appellant] in the driver's seat, sleeping with both of his hands on the wheel and his head against the wheel in between his hands. The engine was running with headlights on and the stereo blaring. Officer Jones opened the car door and woke up [Appellant]. [Appellant] appeared intoxicated, had trouble following instructions and admitted consuming alcohol. [Appellant] failed field sobriety tests and was transported to the police department to perform the Intoxilizer 5000 test, which resulted in a blood alcohol content (BAC) reading of .138.
Wayne Copeland testified for the defense that he had driven the silver Intrigue from a downtown club to the Edgeworth Eat 'n Park, with [Appellant] riding as a passenger. Mr. Copeland claimed that he had parked the vehicle in the handicap spaces, left the vehicle running, and then went into the Eat 'n Park to meet a lady friend. Mr. Copeland said he saw the police activity but did not go to the scene because he was scared. Likewise, [Appellant] testified that he did not drive the silver Intrigue. He stated that he was in the passenger's seat until Mr. Copeland left the vehicle. After waiting in the passenger's seat for a few minutes, he sat in the driver's seat, with the vehicle running, and just dozed off. The silver Intrigue belonged to [Appellant's] employer and only [Appellant] was permitted to drive it. This Court found the testimony of Mr. Copeland and [Appellant] to be incredible. [Appellant] was the only person in the car and the only person around when Officer Jones arrived at 4:00 a.m.
(Trial Court Opinion, filed October 29, 2003, at 1-2). Appellant proceeded to a bench trial, and on April 9, 2003, the court convicted Appellant of two counts of DUI.2 On June 11, 2003, the court sentenced Appellant to two consecutive 30-day flat terms of incarceration to be followed by two concurrent terms of 18 months of probation. Appellant timely filed a post-sentence motion on June 23, 2003,3 which the court denied on August 11, 2003. This timely appeal followed. The trial court ordered a Rule 1925(b) concise statement of matters complained of on appeal, and Appellant timely complied with that order.
¶ 3 Appellant raises the following issues for our review:
WHETHER THE CONVICTION FOR DRIVING UNDER THE INFLUENCE WAS SUPPORTED BY SUFFICIENT EVIDENCE WHEN: (1) THE ACCUSED WAS NEVER SEEN OPERATING OR DRIVING THE MOTOR VEHICLE; (2) COMMONWEALTH WITNESSES DID NOT ESTABLISH HOW LONG THE VEHICLE WAS PARKED PRIOR TO THE ARRIVAL OF THE ARRESTING OFFICER; (3) THE VEHICLE'S LIGHTS WERE ON AND THE MOTOR WAS RUNNING WITH THE TRANSMISSION IN PARK; (4) THE ACCUSED WAS ASLEEP IN THE DRIVER'S SEAT WITH HIS HANDS AND HEAD RESTING ON THE STEERING WHEEL; AND (5) THE COMMONWEALTH FAILED TO ESTABLISH THAT ALCOHOLIC BEVERAGES WERE NOT SOLD IN CLOSE PROXIMITY TO THE AREA WHERE THE VEHICLE WAS PARKED.
INCARCERATION FOR A CONVICTION OF 75 [Pa.C.S.A.] 3731(a)(4)[(i)] WHEN SUCH ALLEGED CRIMINAL CONDUCT RESULTED FROM A SINGLE INCIDENT WHERE THE COMMONWEALTH ALLEGED THAT [APPELLANT] WAS FOUND ASLEEP IN THE DRVER'S SEAT OF HIS VEHICLE WITH THE MOTOR RUNNING AND HEADLIGHTS ON.
¶ 4 In his first issue, Appellant argues the Commonwealth did not prove he was in "actual physical control" of the vehicle while under the influence of alcohol. The Commonwealth introduced testimony that the arresting officer found Appellant in a vehicle parked outside a restaurant, asleep in the driver's seat with his hands on the wheel and his head resting on his hands. The engine of the vehicle was running, the headlights were on, and the transmission was in park position. Appellant maintains the Commonwealth could not establish how long the vehicle had been in the parking lot, except that it had appeared sometime between 1:00 a.m. and 4:00 a.m. Appellant further contends the Commonwealth failed to eliminate the possibility that Appellant did not consume alcoholic beverages in the Eat 'n Park parking lot or that alcoholic beverages were not sold in the vicinity of the Eat 'n Park. Appellant asserts there was no public safety issue involved here, because the vehicle was off the roadway and was not moving. Appellant concludes the evidence was insufficient to support his DUI convictions.4 We disagree.
¶ 5 A challenge to the sufficiency of the evidence is a question of law, subject to plenary review. Commonwealth v. Weston, 561 Pa. 199, 203 n.8, 749 A.2d 458, 460 n.8 (2000). "When reviewing a sufficiency of the evidence claim, the appellate court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner." Id. at 204, 749 A.2d at 461. "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. The Commonwealth "need not preclude every possibility of innocence" or establish the defendant's guilt to a mathematical certainty. Commonwealth v. Johnson, 833 A.2d 260, 264 (Pa.Super. 2003). "Finally, the trier 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. Robertson-Dewar, 829 A.2d 1207, 1211 (Pa.Super. 2003), appeal denied, 576 Pa. 712, 839 A.2d 352 (2003) (quoting Commonwealth v. Lambert, 795 A.2d 1010, 1014-15 (Pa.Super. 2002), appeal denied, 569 Pa. 701, 805 A.2d 521 (2002)).
¶ 6 At the time of Appellant's offense,5 Section 3731 (now repealed) of Pennsylvania's Motor Vehicle Code provided in relevant part:
§ 3731. Driving under influence of alcohol or controlled substance (a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances:
(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:
(i) an adult is 0.10% or greater;
* * *
75 Pa.C.S.A. § 3731(a)(1), (a)(4)(i). "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." Johnson, supra at 263. "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." 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. Commonwealth v. Wolen, 546 Pa. 448, 450, 685 A.2d 1384, 1385 (1996) (plurality). "The Commonwealth can establish through wholly circumstantial evidence that a defendant was driving, operating or in actual physical control of a motor vehicle." Johnson, supra at 263.
¶ 7 In the instant case, the trial court reasoned as follows:
A finding of actual physical control requires more than a motorist behind the wheel with the motor running.2 The totality of the circumstances must support an inference that the defendant drove the vehicle while intoxicated.3
2 In Commonwealth v. Byers, 650 A.2d 468 ([Pa.Super.] 1994), the Superior [C]ourt concluded there was no actual physical control where the motorist was found asleep behind the wheel of his running car, because the car had not moved from the parking lot of the bar where the motorist had been drinking. The reasoning of Byers does not apply to the instant case [because] there was no evidence that the defendant consumed alcohol near the Eat `n Park.
3 In Commonwealth v. Lehman, [] 820 A.2d 766 (Pa.Super. 2003[, appeal granted, 575 Pa. 684, 834 A.2d 1141 (2003)], actual physical control was found where the motorist was slumped over in the driver's seat in the parking lot of [a] closed retail store. The engine was running and the vehicle was perpendicular to the road, ready to pull into traffic. The motorist admitted he had driven after an evening of consuming alcohol. In Commonwealth v. Yaninas, 722 A.2d 187 (Pa.Super. 1998), actual physical control was found where the...
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