J-S71019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARTIN J. PATTERSON,

                        Appellant                   No. 366 WDA 2015


         Appeal from the Judgment of Sentence February 3, 2015
            In the Court of Common Pleas of Venango County
           Criminal Division at No(s): CP-61-CR-0000232-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and OTT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED JANUARY 22, 2016

     Appellant, Martin J. Patterson, appeals from the judgment of sentence

entered following his conviction for driving under the influence (“DUI”).

We affirm.

     The trial court summarized the factual history of this case as follows:

     Jason Hodgkiss, an employee at Klapec Trucking Company, was
     working on the night of February 17, 2014. At 1:00 a.m.,
     Mr. Hodgkiss received a call from his girlfriend stating that an
     inebriated man appeared to be stuck in his vehicle in the ditch
     across the road from their residence. Mr. Hodgkiss left work
     immediately and began traveling home. When Mr. Hodgkiss
     arrived at his residence, he attempted to help [Appellant]
     remove his car from the ditch, but upon drawing closer to
     [Appellant], Mr. Hodgkiss noticed the odor of alcohol emanating
     from [Appellant]. [Appellant] had relayed to Mr. Hodgkiss that
     he was “just going to get some burgers to bring back to his
     kids.” When Jason Hodgkiss first made contact with [Appellant],
     the engine of the car was still on. Once Jason Hodgkiss noticed
     the odor of alcohol, he called the Titusville police. Because
     Mr. Hodgkiss lived in Venango County, the Titusville Area Police
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       informed Mr. Hodgkiss that he would instead have to contact the
       Pennsylvania State Police.     As a result, Mr. Hodgkiss was
       informed that the police might take as long as an hour to arrive.
       Trooper Shawn Armagost was dispatched to [Appellant’s]
       location at 1:32 a.m.        Trooper Armagost testified that
       [Appellant’s] location was approximately fifty miles away, and
       the roads “weren’t in the best of shape” due to snow.
       Trooper Armagost arrived to the scene at around 2:23 a.m.

             Trooper Armagost then approached [Appellant’s] driver’s
       side door and asked [Appellant] what was going on, [Appellant]
       stated that he was “on his way to McDonalds” and he went off
       the road into the ditch. Contrary to what [Appellant] told
       Mr. Hodgkiss and Trooper Armagost, [Appellant] does not have
       any kids at home. In fact, his kids live in Alabama. Trooper
       Armagost observed a strong odor of alcohol emitting from
       [Appellant’s] breathe [sic], slurred speech, and bloodshot eyes.
       [Appellant] was then asked to perform field sobriety tests.
       Thereafter, Trooper Armagost determined that [Appellant] was
       under the influence of alcohol such that he was incapable of safe
       driving. [Appellant] was arrested, and ultimately transported to
       the Titusville Hospital, arriving at 2:59 a.m. The phlebotomist
       was unavailable when Trooper Armagost first arrived, and
       Trooper Armagost needed to wait an additional twenty minutes
       for [Appellant’s] blood to be drawn. The blood was drawn from
       [Appellant] at 3:22 a.m. The blood was transported back to the
       police station and entered into evidence on February 17, 2014,
       at 5:15 a.m. The results of the blood test revealed [Appellant’s]
       BAC[1] to be 0.298%.

              [Appellant’s] version of events differs from the facts
       elicited from Trooper Armagost and Jason Hodgkiss. [Appellant]
       testified that, while driving to Wal-Mart, his car slid off the road.
       According to [Appellant], the car became stuck in a ditch at
       approximately 10:05 p.m. [Appellant] attempted to move the
       car forward and backward, but he claims there was no traction
       and the car would not move from the ditch. After realizing the
       car would not move, [Appellant] called for a tow truck.
       [Appellant] proceeded to sit in his car awaiting the tow truck for
       approximately three hours. While waiting for the tow truck,
____________________________________________


1
    Blood alcohol concentration.



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      [Appellant] claims to have drank an entire thirty-two ounce
      Gatorade bottle filled with sixty-six proof fireball cinnamon
      whiskey. Once Jason Hodgkiss arrived at the scene, [Appellant]
      again attempted to remove his car from the ditch by accelerating
      the car backward and forward; however, the tires spun in place
      and did not move from the ditch.

Trial Court Opinion, 6/22/15, at 5-7 (citations omitted).

      On November 20, 2014, following a bench trial, the court found

Appellant guilty of one count of Driving Under the Influence - Highest Rate

of Alcohol, first offense, in violation of 75 Pa.C.S. § 3802(c). On February 3,

2015, Appellant was sentenced to imprisonment in the Venango County jail

for seventy-two hours to six months. Appellant filed his notice of appeal on

February 27, 2015.        Appellant and the trial court complied with the

requirements of Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

            Whether the [trial] court erred as a matter of law or
      abused its discretion in determining that there was sufficient
      evidence to establish that [Appellant] had driven under the
      influence with the highest rate of alcohol pursuant to 75
      Pa.C.S.A. 3802(C), when the Commonwealth failed to establish
      when [Appellant] was operating the vehicle on a trafficway or
      highway in [correlation] to when [Appellant’s] blood being drawn
      for testing for the amount of alcohol, additionally the
      [C]ommonwealth failed to establish good cause on why
      [Appellant’s] blood was not drawn within two hours or that the
      Commonwealth proved that [Appellant] did not imbibe alcohol
      within the two hour period before the blood was drawn.

Appellant’s Brief at 5.

      Appellant first contends that the evidence was insufficient to convict

him of this crime because the Commonwealth failed to establish that he was


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operating the vehicle on a trafficway or highway while intoxicated.

Appellant’s Brief at 10.    Appellant maintains that the evidence establishes

that the vehicle was not on a highway, but instead, was off the highway in a

ditch. Id. at 12-13. Accordingly, Appellant argues the Commonwealth has

not established evidence sufficient to support his DUI conviction. Id. at 13.

Appellant further avers that the Commonwealth failed to establish “good

cause” as to why Appellant’s blood was not drawn within two hours of his

operation of the vehicle on a highway.     Id. at 12.   Additionally, Appellant

maintains that the Commonwealth failed to prove that he did not imbibe

alcohol “within the two hour period before the blood was drawn.” Id. at 8.

     In reviewing the sufficiency of the evidence, we must determine

whether the evidence admitted at trial and all reasonable inferences drawn

therefrom, viewed in the light most favorable to the Commonwealth as

verdict winner, were sufficient to prove every element of the offense beyond

a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211, 1220 (Pa.

2009). “It is within the province of the fact finder to determine the weight

to be accorded to each witness’s testimony and to believe all, part, or none

of the evidence.”   Commonwealth v. Jackson, 955 A.2d 441, 444 (Pa.

Super. 2008). The Commonwealth may sustain its burden of proving every

element of the      crime   by   means   of wholly   circumstantial   evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

Moreover, as an appellate court, we may not re-weigh the evidence and


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substitute our judgment for that of the fact-finder.        Commonwealth v.

Kelly, 78 A.3d 1136, 1139 (Pa. Super. 2013).


      The Vehicle Code provides, in pertinent part, that:

      (c) Highest 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
      0.16% or higher within two hours after the individual has driven,
      operated or been in actual physical control of the movement of
      the vehicle.

75 Pa.C.S. § 3802(c).       The prohibition applies “upon highways and

trafficways throughout this Commonwealth.”        75 Pa.C.S. § 3101(b).      A

highway is defined as:    “[t]he entire width between the boundary lines of

every way publicly maintained when any part thereof is open to the use of

the public for purposes of vehicular travel....”      75 Pa.C.S. § 102.      A

trafficway is defined as “[t]he entire width between property lines or other

boundary lines of every way or place of which any part is open to the public

for purposes of vehicular travel as a matter of right or custom.” Id. “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).

      As noted, in this case Appellant argues that the evidence was

insufficient to support his conviction because “the evidence is clear that the




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vehicle was not on the highway but off the highway in a ditch.” Appellant’s

Brief at 13. This argument lacks merit.

      This Court has observed, “[T]he suspect location of an automobile

supports an inference that it was driven . . . a key factor in the finding of

actual control.” Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa.

Super. 1995) (citation omitted). The testimony at trial established that the

front and rear right wheels of Appellant’s vehicle were in the ditch off the

side of the roadway, and the left-side wheels of the vehicle were located on

the right-side shoulder of the road. N.T., 11/20/14, at 8-9. Thus, the fact

that Appellant’s vehicle was found in a ditch alongside the highway supports

the inference that it was, in fact, driven on the highway before stopping in

the ditch.   Additionally, when Mr. Hodgkiss arrived on the scene where

Appellant’s vehicle was stuck in the ditch, he noticed a strong odor of alcohol

on Appellant and contacted police. Id. at 7-9. When officers arrived on the

scene, Trooper Armagost testified that based on his training and experience,

he concluded that Appellant was intoxicated.       Id. at 23-25.    Thus, the

evidence of record supports the conclusion that Appellant was operating his

vehicle on the roadway while under the influence of alcohol.

      Appellant attempted to rebut this inference by asserting that he

consumed alcohol only after his vehicle stopped in the ditch.        Appellant

testified that after realizing he could not get the car out of the ditch, he

contacted his insurance company for a tow truck.       N.T., 11/20/14, at 45.


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Appellant maintained that while waiting for the tow truck, he drank an entire

thirty-two-ounce Gatorade bottle filled with sixty-six proof fireball cinnamon

whiskey. Id. at 46-49. The trial court, however, found Appellant’s account

of events to be incredible. Id. at 69; Trial Court Opinion, 6/22/15, at 10.

As an appellate court, we may not re-weigh the evidence and substitute our

judgment for that of the fact-finder.      Kelly, 78 A.3d at 1139.           Thus,

Appellant’s claim fails.

      Furthermore, the trial court provided the following analysis regarding

evidence of record establishing that Appellant operated the vehicle while

under the influence of alcohol:

            Evidence adduced at trial showed that [Appellant’s] engine
      was on, and [Appellant] repeatedly attempted to remove his
      vehicle from the ditch by stepping on his vehicle’s accelerator.
      Emerging from this collection of evidence is a clear illustration of
      the very type of public safety danger that the DUI statute was
      designed to combat: a drunken driver behind the wheel with the
      engine running, having driven when he ought not and where he
      ought not.       Accordingly, we conclude that the evidence
      established beyond a reasonable doubt that [Appellant] was
      operating or in actual physical control of this car while
      intoxicated for purposes of the DUI statute.

Trial Court Opinion, 6/22/15, at 9 (citations omitted).

      Thus, the evidence of record supports a second basis for the

conclusion that Appellant operated his vehicle while intoxicated.     Evidence

that Appellant operated or was in control of the vehicle in the ditch, and not

on the highway, while Appellant was intoxicated was sufficient to establish




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commission of this offense. It is of no relevance that Appellant was unable

to move the vehicle from the ditch.

      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. 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. A determination of actual
      physical control of a vehicle is based upon the totality of the
      circumstances. The Commonwealth can establish through wholly
      circumstantial evidence that a defendant was driving, operating
      or in actual physical control of a motor vehicle.

Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005)

(internal citations omitted).

      This Court addressed a similar claim in Williams, where the defendant

was convicted of two counts of driving under the influence (DUI).

Wiilliams, 871 A.2d at 257. In that case, the defendant argued that the

evidence was insufficient to support his DUI convictions because the

Commonwealth failed to establish that he was in “actual physical control” of

the vehicle while intoxicated because the vehicle was off the roadway and

was not moving. Id. at 258. The trial evidence disclosed that police found

the defendant at 4:00 a.m. in his car with the headlights and radio on and

the engine running; the car was parked diagonally across two handicapped

spaces in front of an establishment that did not serve alcoholic beverages;

the defendant’s employer owned the car, and only the defendant had

permission to drive it; and the defendant was in the driver’s seat with his

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hands and head on the steering wheel.       Id. at 260-261.    The defendant

showed visible signs of intoxication, admitted drinking, failed several field

sobriety tests, and had a BAC of .138%. Id. at 261. The court specifically

rejected as incredible the defendant’s defense that someone else had been

driving the vehicle. Id. This Court agreed with the trial court’s conclusion

that the evidence was sufficient to establish that the defendant was in actual

control of a motor vehicle while intoxicated and found irrelevant the fact that

the vehicle did not move. Id. See also Commonwealth v. Yaninas, 722

A.2d 187, 188-189 (Pa. Super. 1998) (court found the appellant was in

actual physical control of vehicle for purposes of DUI conviction where

Appellant was found behind wheel of vehicle, on the berm of a highway, with

engine running and lights on, despite the car not moving).

      Thus, there is no requirement that Appellant actually succeed in

moving the vehicle for a determination to be made that Appellant operated

or was in actual physical control of the vehicle for purposes of the DUI

statute.   Here, the totality of circumstances established that Appellant

operated or was in actual physical control of the vehicle when he attempted

to move the vehicle from the ditch.          The record reflects that while

Appellant’s vehicle was in the ditch, the engine of the vehicle was on,

Appellant sat behind the steering wheel in the driver’s seat and depressed

the accelerator in an attempt to get the vehicle out of the ditch.        N.T.,

11/20/14, at 7-8, 16, 48, 60.      Mr. Hodgkiss was with Appellant during


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Appellant’s efforts to move the vehicle and testified that when he

approached Appellant, he could smell alcohol on Appellant’s breath. Id. at

7-8.    Moreover, in his version of events, Appellant explained that he

consumed alcohol after becoming stuck in the ditch but before attempting to

move the vehicle from the ditch with Mr. Hodgkiss’s assistance. Id. at 46-

48. Thus, we agree with the trial court that the evidence established beyond

a reasonable doubt that Appellant was operating or was in actual physical

control of his car while intoxicated for purposes of the DUI conviction.

       Next, we address Appellant’s assertion that the Commonwealth failed

to establish “good cause” as to why Appellant’s blood was not drawn within

two hours of Appellant operating the vehicle on a highway. Appellant’s Brief

at 12. Relatedly, Appellant claims that the Commonwealth failed to prove

that he did not imbibe alcohol “within the two hour period before the blood

was drawn.” Id. at 8.

       In this case, the evidence of record establishes that Appellant was in

control of the machinery of his vehicle at some point after 1:30 a.m., when

he was attempting to remove it from the ditch. N.T., 11/20/14, at 7-10. As

noted previously, the fact that Appellant could not move the vehicle from the

ditch is irrelevant to a determination as to whether he operated the vehicle

for purposes of the DUI statute. Williams, 871 A.2d at 261. Additionally,

the record reflects that Appellant’s blood was drawn at 3:22 a.m. at

Titusville hospital and at that time, his blood alcohol level measured


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0.298%.   N.T., 11/20/14, at 26-28.     Thus, the evidence of record reflects

that Appellant’s blood was drawn within two hours from his operation of the

vehicle, and the blood alcohol level measured in excess of 0.16%.            75

Pa.C.S. § 3802(c).

      To the extent that testimony regarding the times of the blood draws

was not exact and allowed for the possibility that more than two hours

elapsed from when Appellant operated the vehicle until the blood draw and

measurement of Appellant’s blood alcohol level occurred, the legislature has

provided an exception to the two-hour timeframe. Section 3802(g) provides

as follows:

      (g) Exception to two-hour rule.--Notwithstanding the
      provisions of subsection (a), (b), (c), (e) or (f), where alcohol or
      controlled substance concentration in an individual’s blood or
      breath is an element of the offense, evidence of such alcohol or
      controlled substance concentration more than two hours after
      the individual has driven, operated or been in actual physical
      control of the movement of the vehicle is sufficient to establish
      that element of the offense under the following circumstances:

              (1) where the Commonwealth shows good cause
              explaining why the chemical test sample could not be
              obtained within two hours; and

              (2) where the Commonwealth establishes that the
              individual did not imbibe any alcohol or utilize a
              controlled substance between the time the individual
              was arrested and the time the sample was obtained.

75 Pa.C.S. § 3802(g).

      The trial court provided an alternative analysis, assuming arguendo

that Appellant’s testimony and related claim that the blood draw was taken



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two hours after operation of his vehicle was accurate. In that analysis, the

trial court found that the Commonwealth established good cause for any

such delay:

        [W]e did not believe [Appellant’s] testimony to be credible in the
        least, but even if we did find [Appellant’s] testimony to be true,
        we believe the Commonwealth has shown “good cause” as to
        why there was a delay in testing [Appellant’s] BAC level. The
        officers in this case acted diligently throughout the investigation,
        and especially under the circumstances of an early-morning
        accident on a snowy road. The area in which [Appellant’s]
        accident occurred happened to be fifty miles away from
        Trooper Armagost’s location - something beyond his control.
        Trooper Armagost determined that [Appellant] was under the
        influence of alcohol and transported him to the hospital in a
        timely manner. Trooper Armagost testified that he was “at the
        will of the hospital,” and needed to wait more than twenty
        minutes for a phlebotomist to draw [Appellant’s] blood. The
        delay in obtaining [Appellant’s] blood could not be attributed to
        any dilatory tactics on the part of law enforcement, but rather it
        was due to the unavailability of the phlebotomist.             More
        significantly, the delay was due to the unavoidably long distance
        Trooper Armagost needed to travel in order to find [Appellant’s]
        stationary vehicle. The court finds that the police actions vis-a-
        vis this [Appellant] were reasonable under the circumstances,
        and that the Commonwealth has shown good cause for the delay
        in securing a sample of [Appellant’s] blood. We will not reward
        [Appellant] for being “fortuitous” enough to drive under the
        influence a great distance away from a police barracks.

Trial   Court   Opinion,   6/22/15,   at   14-15   (internal   citations   omitted).

Additionally, the trial court concluded that the Commonwealth established

the second necessary element under this exception.                Specifically, the

Commonwealth proved that Appellant had not imbibed any alcohol or used

any substance between the time that he was arrested and the time the blood

sample was obtained, as follows: “[Appellant] was placed into the rear seat

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of the responding officers’ patrol car after failing his sobriety tests. Directly

after that, [Appellant] was transported to the Titusville Hospital, where he

was monitored by both Corporal Bunyak and Trooper Armagost.” Trial Court

Opinion, 6/22/15, at 15.

      The record supports the trial court’s analysis, and we agree with the

trial court’s conclusion. Thus, even assuming arguendo that more than two

hours elapsed between Appellant’s operation of the vehicle and the drawing

and measuring of Appellant’s blood, such delay is excused pursuant to 75

Pa.C.S. § 3802(c).    Therefore, we conclude there is sufficient evidence of

record to support Appellant’s conviction under section 3802(c).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2016




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