J-S25032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID ALLEN PISTORIUS                      :
                                               :
                       Appellant               :   No. 1571 WDA 2017

            Appeal from the Judgment of Sentence October 19, 2017
                 In the Court of Common Pleas of Butler County
              Criminal Division at No(s): CP-10-CR-0000832-2016


BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 09, 2018

        David Allen Pistorius brings this appeal from the judgment of sentence

imposed on October 19, 2017, in the Court of Common Pleas of Butler County.

Following a non-jury trial, the trial court found Pistorius guilty of driving under

the influence (“DUI”) – general impairment1 and DUI – high rate of alcohol2

and sentenced him to house arrest for a period of 45 days and 100 hours of

community service over the following six months.           The issues raised by

Pistorius in this appeal are challenges to the sufficiency and weight of the

evidence. Based upon the following, we affirm.

        The trial court aptly summarized the relevant facts as follows:

        Trooper Robert Gambone, a seven-year veteran of the
        Pennsylvania State Police, was dispatched at approximately 4:12
____________________________________________


1   See 75 Pa.C.S.A. § 3802(a)(1).
2   See 75 Pa.C.S.A. § 3802(b).
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       A.M. on February 8, 2016, along with Trooper Kirnschild, to a
       residence on Meridian Road in Penn Township, Butler County
       based on a 911 call. During the call[,] it was reported that a
       vehicle was located at a house where it did not belong. Trooper
       Gambone had worked the night shift for the majority of his State
       Police career and had been trained in field sobriety testing and
       recognizing individuals who were under the influence. At the time
       he reported to the Meridian Road residence, the trooper had made
       approximately 170 arrests for driving under the influence and was
       a certified DataMaster Operator. When Trooper Gambone arrived
       at the Meridian Road residence, he observed a Chevrolet Cavalier
       parked on or near the driveway. The car was sitting on top of,
       and was hung up on, decorative rocks. The driver of the vehicle
       was not present when Troopers Gambone and Kirnschild arrived.
       Trooper Gambone ran the license plate number of the vehicle
       through NCIC. PennDOT records indicated David Allen Pistorius
       was the owner of the vehicle.

       The troopers then walked up the driveway[,] and shortly
       thereafter spoke to the neighbor who had called 911. After
       speaking to the caller, Trooper Gambone walked along a brush or
       tree line nearby where the Cavalier had been stuck. As he looked
       around using his flashlight, Trooper Gambone turned to his right
       and saw a man approximately five feet away[,] standing with his
       back against a tree[,] trying to hide. The man, later identified by
       Trooper Gambone as the Defendant, took a step forward and
       Trooper Gambone grabbed him and asked what he was doing. The
       two then fell to the ground. When Trooper Gambone thereafter
       asked the Defendant what he was doing, the Defendant indicated
       that he ran out of gas and pulled into the driveway of the Meridian
       Road residence.[3] The Defendant indicated that he arrived at the
       driveway approximately fifteen or twenty minutes earlier and that
       he knew the owner of the residence. While speaking to the
       Defendant, Trooper Gambone detected a strong odor of alcoholic
       beverage on the Defendant’s breath. The Defendant exhibited
       severely blurred speech and had bloodshot and glassy eyes. It
____________________________________________


3 At trial, Charles Gage, a friend of Pistorius, contested the trooper’s testimony
by claiming he was in the car with Pistorius when another individual named
Brian drove him to the Meridian Road residence. See N.T., 9/1/2017, at 26.
Gage testified Pistorius left the car at the residence earlier that day because
it was out of gas, and the driver dropped him off following a party they had
attended. See id. at 24-25.

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      was also clear to the trooper that the Defendant had urinated in
      his pants.

      Trooper Gambone arrested the Defendant for driving under the
      influence. Shortly thereafter[,] the Defendant admitted to having
      been drinking. The Defendant was then transported to the State
      Police Barracks. Once there[,] the Defendant was read the
      warnings contained on the PennDOT DL-26. The Defendant
      agreed to submit to chemical testing of his breath. At 5:28 A.M.,
      chemical testing of the Defendant’s breath was performed on a
      properly calibrated and sufficiently accurate DataMaster. The
      testing revealed a blood-alcohol concentration of .127%.

Trial Court Opinion, 11/27/2017, at 1-3.

      The case proceeded to a non-jury trial conducted on September 1, 2017.

That same day, the trial court found Pistorius guilty of DUI – general

impairment and DUI – high rate of alcohol, and sentenced him to house arrest

for a period of 45 days and 100 hours of community service over the following

six months. Pistorius filed this timely appeal and complied with the trial court’s

request to submit a Pa.R.A.P. 1925(b) concise statement of matters

complained of on appeal.

      In his first issue on appeal, Pistorius challenges the sufficiency of the

evidence supporting his conviction. See Pistorius’ Brief at 12.

      Our standard of review of a claim challenging the sufficiency of the

evidence is as follows:

      We must determine whether the evidence admitted at trial, and
      all reasonable inferences drawn therefrom, when viewed in a light
      most favorable to the Commonwealth as verdict winner, support
      the conviction beyond a reasonable doubt. Where there is
      sufficient evidence to enable the trier of fact to find every element
      of the crime has been established beyond a reasonable doubt, the
      sufficiency of the evidence claim must fail.

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      The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute our
      judgment for that of the fact-finder. The Commonwealth’s burden
      may be met by wholly circumstantial evidence and any doubt
      about the defendant’s guilt is to be resolved by the fact finder
      unless the evidence is so weak and inconclusive that, as a matter
      of law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. 2011)

(citation omitted). When the trial court sits a fact-finder, it is “free to afford

whatever weight it deem[s] appropriate to the evidence admitted at trial[.]”

Commonwealth v. O’Donnell, 740 A.2d 198, 209 (Pa. 1999).

      Section 3802 of the Vehicle Code governs offenses related to driving

under the influence of alcohol and provides, in pertinent part:

      (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.
                                       ...

      (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.

75 Pa.C.S.A. § 3802 (emphasis in original).


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      “Under Pennsylvania law, an eyewitness is not required to establish one

was driving, operating, or in actual physical control of a motor vehicle, but

rather,   the   Commonwealth     may    establish   the   same   through   wholly

circumstantial evidence.”    Commonwealth v. Young, 904 A.2d 947, 954

(Pa. Super. 2006), appeal denied, 916 A.2d 633 (Pa. 2006). “A determination

of actual physical control of a vehicle is based upon the totality of the

circumstances.”    Commonwealth v. Williams, 871 A.2d 254, 260 (Pa.

Super. 2005) (citation omitted). “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. Brotherson, 888 A.2d 901, 904 (Pa. Super.

2005) (citation omitted), appeal denied, 899 A.2d 1121 (Pa. 2006). “In a

majority of cases, the suspect location of the vehicle, which supports an

inference that it was driven, is a key factor in a finding of actual control.” Id.

at 905 (citation omitted).

      Pistorius argues the circumstantial evidence provided by Trooper

Gambone was insufficient to prove beyond a reasonable doubt that he had

actual physical control of the vehicle. See Pistorius’ Brief at 13-14. Pistorius

relies on Brotherson, supra, in which an officer found the defendant asleep

in the driver’s seat of his car, parked on a basketball court with the motor

running. See id. at 901. The court found the “highly inappropriate location”


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of the vehicle and the running motor to be sufficient circumstantial evidence

the defendant had been driving.      Id. at 905.   Pistorius argues that since

Trooper Gambone did not testify that he was in the car or that the engine was

running, his case is factually distinct from Brotherson. See Pistorius’ Brief

at 16.

         Pistorius cites additional case law, in which defendants had actual

control of their vehicles because witnesses saw them inside or leaning on their

vehicles.    See Commonwealth v. Johnson, 833 A.2d 260, 263-264 (Pa.

Super. 2003) (defendant had control of the vehicle because a witness saw him

leaning against the car moments after an accident); Young, supra, 904 A.2d

at 955 (defendant had control because he was seen exiting the vehicle

moments after an accident).     He argues these cases set a requirement of

extreme proximity to the vehicle, and claims that his mere presence on the

same property as the car was not sufficient. See Pistorius’ Brief at 14-15.

         Pistorius also relies on Commonwealth v. Byers, 650 A.2d 468 (Pa.

Super. 1994), in which a panel of this Court concluded the circumstantial

evidence against the defendant was not enough to establish control of the

vehicle, although he was found asleep in his car, drunk, with the motor

running. See id. at 469. However, the vehicle had not left its parking spot

outside the bar where the defendant had been drinking. See id. The panel

reasoned that the location of the vehicle was not “suspect,” because the

defendant’s presence in the bar parking lot indicated he had not attempted to


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drive after imbibing. Id. The panel concluded the evidence was insufficient

because “a showing that an intoxicated defendant started a parked car,

without more, is not enough to prove actual physical control.” Id. at 470.

Here, Pistorius argues, given the significant amount of circumstantial evidence

required in Byers, the evidence against him is “woefully insufficient.”

Pistorius’ Brief at 16.

      In convicting Pistorius, the trial court found the following:

      As the Commonwealth may sustain its burden of proving that the
      Defendant drove after imbibing alcohol by wholly circumstantial
      evidence, e.g. Commonwealth v. Young, 904 A.2d 947, 954-55
      (Pa. Super. Ct. 2006), there was sufficient evidence presented
      upon which to find beyond a reasonable doubt that the Defendant
      violated §§ 3802(a)(1) & (b).

Trial Court Opinion, 11/27/2017, at 3.        We agree with the trial court’s

conclusion.

      The record conclusively demonstrates sufficient circumstantial evidence

exists to support a finding of actual physical control. Control is indicated by a

combination of factors, including “location” and “additional evidence showing

that the defendant had driven the vehicle.” Brotherson, supra, 888 A.2d at

904. In response to a 911 call by a neighbor, the troopers found Pistorius’ car

in a “suspect” location, as it was stuck on decorative rocks, indicating the

driver operated it carelessly. Byers, supra, 650 A.2d at 469. Additionally,

Pistorius was present near the car when the trooper arrived. Although he

claims that he was merely on the same property as the vehicle and attempts

to distinguish Johnson, supra, and Young, supra, the record indicates he


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was more than simply present. The vehicle in question was registered in his

name. He was heavily intoxicated, which he does not dispute, and attempted

to hide from the police when approached. When viewed in its entirety, the

circumstantial evidence, particularly the suspect location of the vehicle,

indicates beyond a reasonable doubt Pistorius operated the vehicle while

intoxicated.

      Moreover, Pistorius’ reliance on case law fails under scrutiny.         As

established, the vehicle was stuck on decorative rocks, and was therefore in

a suspect location. Since this key factor was met, the case is factually distinct

from Byers, supra, the only case that Pistorius cites in which control was not

established.   Although Pistorius argues there was insufficient evidence of

control because the motor was not running, he cites two cases in which control

was found without this factor present. See Johnson, supra, 833 A.2d at

263-264; Young, supra, 904 A.2d at 955. Furthermore, the location of the

vehicle, not the running motor, is the key factor. See Brotherson, supra,

888 A.2d at 905.     Therefore, we hold that Brotherson governs, and the

circumstantial evidence presented herein was sufficient to find actual physical

control.

      Pistorius also argues his conviction was against the weight of the

evidence. See Pistorius’ Brief at 16. He contends the circumstantial evidence

provided by Officer Gambone was insufficient to overcome the firsthand

evidence provided by Gage, which indicated another individual drove Pistorius


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to the Meridian Road residence prior to his arrest. See Pistorius’ Brief at 16-

17.

      Our standard of review for a challenge to the weight of the evidence is

as follows:

      The essence of appellate review for a weight claim appears to lie
      in ensuring that the trial court’s decision has record support.
      Where the record adequately supports the trial court, the trial
      court has acted within the limits of its discretion.

                                      ...

      A motion for a new trial based on a claim that the verdict is against
      the weight of the evidence is addressed to the discretion of the
      trial court. A new trial should not be granted because of a mere
      conflict in the testimony or because the judge on the same facts
      would have arrived at a different conclusion. Rather, the role of
      the trial judge is to determine that notwithstanding all the facts,
      certain facts are so clearly of greater weight that to ignore them
      or to give them equal weight with all the facts is to deny justice.

                                      ...

      An appellate court’s standard of review when presented with a
      weight of the evidence claim is distinct from the standard of review
      applied by the trial court. Appellate review of a weight claim is a
      review of the exercise of discretion, not of the underlying question
      of whether the verdict is against the weight of the evidence.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (citations

omitted). To reverse the decision of the trial court, "the evidence must be so

tenuous, vague and uncertain that the verdict shocks the conscience of the

court." Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003)

(quotations omitted).




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      We hold that Pistorius’ weight of the evidence claim is waived for

appellate review. “A weight of the evidence claim must be preserved either

in a post-sentence motion, by a written motion before sentencing, or orally

prior to sentencing." Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.

Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013); see Pa.R.Crim.P. 607.

Additionally, “any issue not properly included in the [1925(b)] Statement

timely filed and served pursuant to subdivision (b) shall be deemed waived.”

Pa.R.A.P. 1925(b)(3)(iv).    Pistorius failed to raise a weight claim during

sentencing or in a post-sentence motion, and similarly failed to include it in

his 1925(b) statement. See Concise Statement of Matters Complained of on

Appeal, 11/1/2017, at 1. For these reasons, his claim is waived.

      Furthermore, even if Pistorius had properly preserved the claim, there

is no reason to disturb the findings of the trial court. The trial court properly

exercised its discretion in weighing the testimony of the trooper over the

testimony of Pistorius’ friend. Indeed, it makes little sense that Gage and the

driver would leave Pistorius, drunk and alone, at another’s residence instead

of taking him home. Since the trial court was free to ignore Gage’s testimony

and its conclusions were based on Trooper Gambone’s testimony, we would

conclude Pistorius’ conviction does not “[shock] the conscience.” Sullivan,

supra, 820 A.2d at 806.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/9/2018




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