J-S49029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA

                             Appellee

                        v.

    TRICIA M. GATEWOOD

                             Appellant                 No. 384 MDA 2018


       Appeal from the Judgment of Sentence imposed February 27, 2018
                  In the Court of Common Pleas of York County
               Criminal Division at Nos: CP-67-MD-0001458-2017

BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                         FILED SEPTEMBER 24, 2018

       Appellant, Tricia M. Gatewood, appeals from her judgment of sentence

for four counts of driving under the influence (“DUI”),1 claiming that there was

insufficient evidence from which to conclude that she drove, operated or was

in actual physical control of a motor vehicle. We affirm.

       On February 4, 2017, Trooper Kelly of the Pennsylvania State Police was

dispatched to respond to a 911 hang-up at 256 Black Oak Trail in Delta,

Pennsylvania. When Trooper Kelly arrived at the residence, only one minivan

was parked in the driveway. Appellant’s husband informed Trooper Kelly that


____________________________________________


* Former Justice specially assigned to the Superior Court.

1 75 Pa. C.S. § 3802(a)(1), 3802(b), 3802(d)(1)(ii), 3802(d)(3). Appellant
was also convicted of harassment under 18 Pa.C.S. § 2709. This conviction
is not at issue in this appeal.

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he and Appellant had been involved in an argument, and that Appellant had

left the house to drive around the neighborhood. N.T., 1/8/18, at 70. The

trooper entered the residence and observed signs of a violent argument

(broken glass and a smashed aquarium).

      About ten minutes later, Appellant and her daughter entered the

residence. Trooper Kelly noticed that Appellant had the smell of alcohol about

her person, bloodshot eyes, and slurred speech. Appellant told Trooper Kelly

that earlier in the day, her family visited her, and she had been drinking wine.

When the guests left, her and her husband began to fight over her opinion

that God wanted her to move to Florida. During the course of the argument,

Appellant struck her husband with a cucumber several times.          While her

children were present in the room, Appellant flipped over an aquarium. Glass

shards littered the floor around the children, and one of the children injured

her foot while trying to save a fish. Appellant left the home to go for a drive

with her child around the neighborhood so that she could calm down.      Id. at

79, 98. Trooper Kelly testified that public roads surround the home. There

are no private roads in the neighborhood.

      While there had been only one vehicle at the residence when Trooper

Kelly arrived, there was now a second vehicle, a green Toyota Sienna, parked

on the lawn of the residence. Id. at 76. Trooper Kelly did not actually observe

Appellant driving the Sienna or behind the wheel, because he was inside the

residence at the time Appellant returned to the residence.       Nevertheless,




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Trooper Kelly did not see any other individual who could have driven this

vehicle onto the lawn. Id. at 98.

      Trooper Baker, a second trooper, arrived about 45 minutes after Trooper

Kelly. When Trooper Baker arrived, there were two minivans parked at the

home, one in the driveway and one on the grass. Appellant acted belligerently

towards Trooper Baker, stating it was none of his “fucking business” what she

had to drink. N.T., 1/8/18, at 118. Trooper Baker “absolutely” smelled alcohol

on her person. Id. at 117. Appellant was using the railing on the back porch

for support. When Trooper Baker asked Appellant to perform field sobriety

tests, Appellant said: “I’m not fucking going anywhere with you.” Id. at 122-

23.   Appellant attempted to run away but was apprehended.              Blood tests

following her arrest revealed that that she had 65 nanograms per milliliter of

amphetamines, a controlled substance, in her blood and a blood alcohol

concentration of .111%.

      On     January   9,   2018,   the   jury   found   Appellant   guilty   of   the

aforementioned charges.       On February 27, 2018, the trial court imposed

sentence.     Appellant filed a timely notice of appeal and timely Pa.R.A.P.

1925(b) statement raising several claims that the evidence was insufficient to

prove that she was intoxicated to a degree that rendered her incapable of safe

driving.    The trial court subsequently filed a Pa.R.A.P. 1925(a) opinion on

these claims.

      In this Court, Appellant raises one issue on appeal:




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      Whether the jury erred in finding the Appellant guilty of violating
      75 Pa.C.S.A. § 3802 when the evidence was insufficient to
      establish each required element of the offense beyond a
      reasonable doubt to support her conviction, there being legally
      insufficient evidence from which to reasonably conclude that
      [Appellant] drove, operated, or was in actual physical control of
      the movement of, a motor vehicle[?]

Appellant’s Brief at 7.

      The only question that Appellant raised in her Pa.R.A.P. 1925(b)

statement was whether the evidence was sufficient to prove that she was

intoxicated to a degree that rendered her incapable of safe driving.         The

argument in her brief concerns an entirely different issue: whether there was

insufficient evidence that she was driving, operating or in actual physical

control of the vehicle. Appellant waived this issue by failing to raise it in her

Pa.R.A.P. 1925(b) statement. Commonwealth v. Diamond, 83 A.3d 119,

136 (Pa. 2013) (in capital appeal, defendant waived issues that he failed to

raise in Pa.R.A.P. 1925(b) statement).

      Even if Appellant preserved the issue of operation and control for appeal,

it is devoid of merit. “A claim challenging the sufficiency of the evidence is a

question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

      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

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     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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

     The DUI statute provides in relevant part:

     (a)(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.

                             *     *         *

     (b) High 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 at least 0.10%
     but less than 0.16% within two hours after the individual has
     driven, operated or been 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:

        (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

                             *     *         *

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      (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. The term “operate” requires evidence of actual physical

control of the vehicle to be determined based upon the totality of the

circumstances. Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super.

2008). “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.” Id.; see also

Commonwealth v. Johnson, 833 A.2d 260 (Pa. Super. 2003) (collecting

cases on actual physical control).

      Construed in the light most favorable to the Commonwealth, the

evidence demonstrates that Appellant was driving, operating or in actual

physical control of the green Sienna.      While neither trooper observed her

driving the vehicle or behind the wheel, other evidence proves that she was

driving the Sienna while intoxicated.     Trooper Kelly arrived at Appellant’s

residence in response to a 911 call. Trooper Kelly observed only one car in

the driveway at the time of his arrival. Appellant’s husband told the trooper

that he and Appellant had been arguing, and that Appellant had left the

residence and gone driving around the neighborhood.          Ten minutes later,

Appellant entered the residence displaying obvious signs of intoxication.


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There was now a second car parked on the lawn, a green Sienna. Trooper

Kelly did not see any other individual who could have driven this vehicle onto

the lawn.     Appellant admitted that she had been driving around the

neighborhood. Trooper Baker subsequently arrived, and the troopers placed

Appellant under arrest. These facts provided ample evidence for the jury to

conclude beyond a reasonable doubt that Appellant drove, operated or was in

actual physical control of the Sienna. Accordingly, Appellant’s challenge to

the sufficiency of the evidence is devoid of merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/24/2018




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