J-S73029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ANGELA THOMAS

                            Appellant                    No. 418 WDA 2016


             Appeal from the Judgment of Sentence March 15, 2016
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0000928-2015


BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                         FILED NOVEMBER 22, 2016

        Angela Thomas appeals from the judgment of sentence, entered in the

Court of Common Pleas of Fayette County, following her conviction of

Driving Under the Influence of Alcohol (“DUI”),1 Driving While BAC is .02%

or Greater while License Suspended,2           Disregarding a Traffic Lane,3 and

Careless Driving.4 Finding no error, we affirm.

        The trial court set forth the factual history as follows:

        [D]uring the early morning hours of April 12, 2105 in North
        Union Township, Fayette County, Pennsylvania[,] Pennsylvania
____________________________________________


1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 1543(b)(1.1)(i).
3
    75 Pa.C.S. § 3309(1).
4
    75 Pa.C.S. § 3714(A).
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       State Police were dispatched to the area of Bute Road and Oliver
       Road for a report of a vehicle crash. When police arrived, they
       observed a silver Chrysler 300 with a vanity plate that read “Ms.
       Thomas” to have hit a tractor trailer truck that was parked off
       the roadway. The operator of the Chrysler was not at the scene,
       which prompted police to canvass the area. Troopers Robert
       Schmid and Jason Ashton observed a black female, later
       identified as [Thomas], staggering northbound on Bute Road
       approximately one-half mile from where the crash occurred. The
       area was described as having “minimal to [no] automobile
       traffic” and “zero” pedestrian traffic at that time of day. When
       Trooper Schmid made contact with [Thomas], she refused to
       answer any questions regarding her whereabouts. Furthermore,
       Trooper Schmid observed [Thomas] to have glassy, bloodshot
       eyes, staggered gait, and the odor of an alcoholic beverage
       emanating from her. At that point, she was placed into custody,
       read her Miranda[5] rights, and transported to the crash scene.
       While inside the police cruiser, [Thomas] initiated a conversation
       with Trooper Ashton. She asked what was presently happening,
       and he explained that they were trying to ascertain who the
       driver of the vehicle was. He then asked her if she was driving
       the vehicle, to which she answered in the affirmative. Upon
       learning that information, Trooper Michael Carcella, the affiant,
       took [Thomas] into his custody while he continued investigating
       the crash. He then asked [Thomas] to perform a series of field
       sobriety tests, include the horizontal gaze nystagmus (“HGN”)
       and walk and turn tests.            [Thomas’] performance was
       unsuccessful, and she refused to perform any further tests.
       Based on her unsuccessful completion of the field sobriety tests,
       she was then transported to Uniontown Hospital for a blood
       draw. She was read the O’Connell[6] warnings and began
____________________________________________


5
    Miranda v. Arizona, 384 U.S. 436 (1966).
6
  The court refers to the refusal warnings as “O’Connell warnings.” See
Dep’t of Transp., Bureau of Traffic Safety v. O’Connell Department of
Transportation v. O'Connell, 555 A.2d 873 (Pa. 1989). The O'Connell
warnings are a statement of an operator’s rights pursuant to section 1547 of
the Vehicle Code, as amended, 75 Pa.C.S. § 1547, commonly known as the
Implied Consent Law. In O’Connell, the Pennsylvania Supreme Court
discussed the burdens of proof applicable in license suspension cases as
follows:
(Footnote Continued Next Page)


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      arguing with Trooper Carcella and hospital staff that she had a
      right to a breath, not blood, test. Trooper Carcella explained to
      [Thomas] that there were no . . . certified breathalyzer operators
      available, and a blood test was her sole option. Despite being
      warned of the penalty for refusing to submit to a blood sample,
      [Thomas] continued engaging in “belligerent behavior” and
      never submitted to the blood draw. As a result of this incident,
      the aforementioned charges were filed.

Trial Court Opinion, 3/15/16, at 2-4.

      A jury convicted Thomas, and the court sentenced her to three years

of County Intermediate Punishment, the first twelve months to be spent

under house arrest with electronic monitoring. This appeal followed.

      Thomas raises the following issues for our review:

             1. Whether the evidence presented at trial sufficiently
                established that [Thomas] drove, operated or was in
                actual physical control of the movement of the vehicle
                while intoxicated on April 12, 2015;

             2. Whether the evidence presented at trial was sufficient
                to establish that [Thomas] refused to submit to
                chemical testing to determine amount of alcohol or
                controlled substance on the date of the incident;

             3. Did the trial court err in denying [Thomas’] motion for
                mistrial following the trooper’s testimony [Thomas]
                       _______________________
(Footnote Continued)


      [U]nder Section 1547(b) of the Vehicle Code, the Commonwealth
      must establish that the driver involved: (1) was arrested for
      driving under the influence of alcohol; (2) was asked to submit
      to a breathalyzer test; (3) refused to do so; and (4) was
      specifically warned that a refusal would result in the revocation
      of his driver’s license.

Once the Commonwealth meets its burden, it is the driver’s responsibility to
prove that he or she was not capable of making a knowing and conscious
refusal to take the test. Id. at 876.



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                 refused to speak with the troopers following the
                 incident, in violation of [Thomas’] Fifth and Sixth
                 Amendment rights.

Appellant’s Brief, at 7.

        First, Thomas challenges the sufficiency of the evidence. She contends

the Commonwealth failed to prove that she “drove, operated or was in

actual physical control” of the vehicle while intoxicated on the date of the

incident, a necessary element of the offense of DUI.              75 Pa.C.S. §

3802(a)(1).7

        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 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
____________________________________________


7
    § 3802. Driving under influence of alcohol or controlled substance

           (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.

75 Pa.C.S. § 3802(a)(1) (emphasis added).



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      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. Devine, 26 A.3d 1139, 1145 (Pa. Super. 2011).

      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.”

Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003),

quoting Commonwealth v. Wilson, 660 A.2d 105, 107 (Pa Super. 1995).

The Johnson court clarified that “[u]nder Pennsylvania law, an eyewitness

is not required to establish that a defendant was driving, operating, or was

in actual physical control of a motor vehicle.      The Commonwealth can

establish through wholly circumstantial evidence that a defendant was

driving, operating or in actual physical control of a motor vehicle.”

Johnson, 833 A.2d at 263.

      Here, three Pennsylvania State Troopers testified that a silver Chrysler

300, with the vanity plate, “Ms. Thomas,” had struck a parked tractor-trailer.

After determining the operator had fled the scene, Trooper Schmid

canvassed the area, observed a female one-half mile from the scene, later

determined to be Thomas, who had bloodshot eyes and smelled of alcohol.

N.T. Trial, 3/9/16, at 30-33, 42-53.   Thomas was transported back to the

scene, placed into custody, and given Miranda warnings.           Id. at 35.

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Thereafter, Thomas admitted to Trooper Ashton that she was the operator of

the Chrysler. Id. at 46.

       Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, the evidence, both direct and circumstantial, was

sufficient to establish that Thomas “drove, operated, or was in actual

physical control” of the vehicle. See Commonwealth v. Woodruff, 668

A.2d 1158 (Pa. Super. 1995) (determination of actual physical control of

vehicle is based upon totality of circumstances, including location of vehicle,

whether engine was running and whether there was additional evidence

indicating defendant had driven vehicle prior to arrival of the police.).

Accordingly, Thomas’ challenge to the sufficiency of the evidence to sustain

her conviction for DUI is meritless.

       Next, Thomas argues the evidence was insufficient to establish that

she refused to submit to chemical testing.8 This claim is also meritless.

       The evidence established that after being transported to Uniontown

Hospital for a blood draw, Thomas became belligerent and argumentative.

Trooper Carcella testified as follows:
____________________________________________


8
   See 75 Pa.C.S. § 1547(b) (suspension for refusal) (“(1) If any person
placed under arrest for a violation of section 3802 is requested to submit to
chemical testing and refuses to do so, the testing shall not be conducted but
upon notice by the police officer, the department shall suspend the operating
privilege of the person as follows: (i) Except as set forth in subparagraph
(ii), for a period of 12 months. (ii) For a period of 18 months if any of the
following apply: (A) The person's operating privileges have previously been
suspended under this subsection.”). See also 75 Pa.C.S. § 3804(c).



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       Q: Did you advise her why she was going to Uniontown
       Hospital?

       A: Yes, I did. I explained to her that based on my
       observations from the [field] test, I felt she was under the
       influence of alcohol, so we took her to Uniontown Hospital
       where I requested her to submit to a blood draw.

                               ****

       Q: You mentioned about the warnings, what warnings are
       you talking about?

       A: They are the O’Connell Warnings, commonly referred to
       as the Implied Consent Warnings. . . . when you are
       arrested for D.U.I., it is a form that we have to read to you
       to explain to you that if you do not submit to chemical
       testing, if you refuse to . . . have blood drawn or to submit
       to a breath test . . . you are subject to more severe
       penalties. . . . It would be the same if you were convicted
       under driving at the highest rate of alcohol. It includes, I
       think a maximum fine of ten thousand dollars and a year
       suspension on your license, plus possible incarceration.

                             ****

       Q: What happened next after          you   gave   her   these
       warnings, Tooper?

       A: Ms. Thomas became argumentative with myself and
       Corporal Despot . . . she was yelling at us. She was
       belligerent with myself and with hospital staff and she said
       that she had the right to submit to a breath test. . . I
       asked her several more times, I said that the test – we
       don’t have anyone certified to run the intoxalyzer machine.
       The opportunity being given to you right now is the blood
       draw, so if you are not going to submit to the blood draw,
       it is going to be a refusal.

       Q: You gave her that warning?

       A: Absolutely, sir. . . . She continued to argue and I
       argued with her for probably three or four minutes, and
       then I figured it was a refusal. . . . She was yelling. I
       mean, she was hostile. I mean, she was upset obviously,
       and she felt that she had the right to a breath test and I
       explained to her that we are here to do a blood draw.

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        Q: And ultimately you determined that she refused the
        blood draw?

        A: Yes, sir.

N.T. Trial, 3/9/16, at 60-62.

     Thomas argues that the evidence was insufficient to establish that she

refused to submit to chemical testing because “three (3) to four (4) minutes

is an insufficient amount of time to expect a motorist, especially one who

may be under the influence of alcohol, to comprehend the implied consent

law and decide whether to comply or not.”     Appellant’s Brief, at 14.   We

disagree.

     Thomas provides no legal support for her argument that there is a

time requirement for determining consent to chemical testing. The question

of whether a licensee refuses to submit to a chemical test is a legal one,

based on the facts found by the trial court. See Gregro v. Com., Dept. of

Transp., Bureau of Driver Licensing, 987 A.2d 1264, 1267 (Pa. Cmwlth.

2010). What amounts to a “refusal” for purposes of section 1547(b)(1) is not

defined under the statute. However, in construing section 1547(b)(1), the

Pennsylvania Supreme Court has stated that “any response from a licensee

that is anything less than an `unqualified, unequivocal assent’ to submit to

testing constitutes a refusal, subjecting the licensee to the one-year

suspension.”   Todd v. Com., Dept. of Transp., Bureau of Driver

Licensing, 723 A.2d 655, 658 (Pa. 1999) (quoting Com., Dept. of Transp.

v. Renwick, 669 A.2d 934, 939 (Pa. 1996)).       See Dep't of Transp. v.



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Gross, 605 A.2d 433 (Pa. Cmwlth. 1991) (failure to supply sufficient breath

sample is conduct tantamount to refusal to submit to chemical testing);

Murray v. Commonwealth, 598 A.2d 1356 (Pa. Cmwlth. 1991) (anything

short of unqualified, unequivocal assent to request to submit to chemical

testing is refusal); Colgan v. Com., Dept. of Trans., Bureau of Driver

Licensing, 561 A.2d 1341 (Pa. Cmwlth. 1989) (motorist’s insistence that

blood sample be taken from his little toe was equal to refusal to submit to

chemical testing).

      Here, the evidence established that Thomas’ conduct was inconsistent

with “unequivocal assent.” After our review of the record, we are satisfied

with the trial court’s finding that Thomas refused to submit to chemical

testing. Com. Dept. of Transp., Bureau of Driver Licensing v. Ingram,

648 A.2d 285 (Pa. 1994).

      In her final issue, Thomas claims that the trial court erred in denying

her motion for mistrial after Trooper Schmid testified that she initially

refused to answer questions regarding her whereabouts that evening.

Thomas argues Trooper Schmid’s testimony violated her right to remain

silent and her right against self-incrimination.

      We review the denial of a motion for mistrial for an abuse of

discretion.

      [T]he trial court is vested with discretion to grant a mistrial
      whenever the alleged prejudicial event may reasonably be said
      to deprive the defendant of a fair and impartial trial. In making
      its determination, the court must discern whether misconduct or
      prejudicial error actually occurred, and if so, . . . assess the

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      degree of any resulting prejudice. Our review of the resulting
      order is constrained to determining whether the court abused its
      discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877–78 (Pa. Super. 2012)

(citations omitted). “The remedy of a mistrial is an extreme remedy required

‘only when an incident is of such a nature that its unavoidable effect is to

deprive the appellant of a fair and impartial tribunal.’” Id. at 878 (citations

omitted).

      Here, Thomas refers to Trooper Schmid’s testimony recounting the

accident investigation:

         Q: [W]hen you encountered the defendant, were you
         already aware that a crash had occurred up the road?

         A: We were aware that there was a crash right up the
         road.

         Q: Now, where on Bute Road did you encounter the
         defendant in proximity to the crash site?

         A: It was approximately a half mile away in the area of
         Orchard Avenue on Bute Road is where we encountered
         her. . . she was by herself. . . . She was walking – she
         had a purse on over her shoulder, and she was noticeably
         staggering down the roadway.

         Q: What did you do next.

         A: That’s when we pulled over directly in front of her. We
         noticed her from a distance, so we crossed over into the
         southbound lanes, pulled directly in front of her and
         activated the emergency lights and we put a spotlight on
         her, and then that’s when I exited my vehicle to make
         contact with her. . . . When I made contact with her,
         she made no statements. She wouldn’t speak.              I
         questioned her where she was coming from, how
         she got here, what was going on. There was no
         response the entire time I spoke with her.


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N.T. Trial, 3/9/16, at 32-33 (emphasis added).9

       Contrary to Thomas’ argument, Trooper Schmid’s testimony was not

aimed    at   highlighting    her   pre-arrest     silence;   it   merely   relayed   his

investigation of the crash. Observing a woman one-half mile from the scene

of an accident, at an hour where there is no pedestrian traffic in the area,

Trooper Schmid was obligated to question her.                 The statement was not

utilized to provide substantive evidence of Thomas’ guilt, but instead was

recounted in the context of Trooper Schmid’s initial interaction with her. We

agree with the trial court that this was a passing reference and that there

was no misconduct or prejudicial error. Trooper Schmid’s statement did not

deprive Thomas of a fair and impartial trial. See Commonwealth v.

Adams, 104 A.3d 511, 517 (Pa 2014) (“mere reference to a defendant’s

silence does not necessarily impinge constitutional rights when guilt is not

implied”). We find no abuse of discretion. Hogentogler, supra.

       Judgment of sentence affirmed.




____________________________________________


9
  At this point in the testimony, defense counsel moved for a mistrial. See
Pa.R.Crim.P. 605(B) (“When an event prejudicial to the defendant occurs
during trial only the defendant may move for a mistrial; the motion shall be
made when the event is disclosed.”); see also Commonwealth v.
McAndrews, 430 A.2d 1165, 1167 (Pa. 1981) (failure to a timely request
for mistrial waives issue).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




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