J-S42013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
 ROBERT J. MORRISON                        :
                                           :
                    Appellant              :   No. 1824 MDA 2017

         Appeal from the Judgment of Sentence October 24, 2017
 In the Court of Common Pleas of Cumberland County Criminal Division at
                    No(s): CP-21-CR-0001770-2017


BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                            FILED AUGUST 17, 2018

      Robert J. Morrison appeals from the October 24, 2017 judgment of

sentence of county imprisonment of one year less one day to two years less

one day, and a fine.      The sentence was imposed following Appellant’s

conviction by a jury of driving under the influence (DUI) – general impairment,

and a bench trial on the offense of driving without an ignition interlock device.

We affirm.

      We glean the following facts from the transcript of the trial held on

September 12, 2017. At all times relevant hereto, Joseph McCardell was the

general manager of the Wine and Spirit Store, operated by the Pennsylvania

Liquor Control Board, in Shippensburg, Pennsylvania. He explained that the

Board has a policy prohibiting the sale of liquor to persons who are intoxicated

in order to prevent drinking and driving. N.T., 9/12/17, at 9. Mr. McCardell

testified that he was working on March 15, 2017, at approximately 11:30 a.m.,

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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and observed Appellant as he exited a white van and entered the store. He

stated that Appellant was stumbling and swaying as he approached the

register to purchase a bottle of vodka. At the checkout counter, Mr. McCardell

could smell alcohol on Appellant’s breath.         Believing Appellant to be

intoxicated, Mr. McCardell refused to sell him the vodka.

      Mr. McCardell watched Appellant as he exited the store and climbed into

the driver’s seat of a white van. Fearing that Appellant would drive away, the

manager placed a 911 call to police.     He subsequently observed Appellant

move the van to another parking space approximately one hundred yards

away. Id. at 12-13.

      Trooper Nathan Grossman of the Pennsylvania State Police was

dispatched to the liquor store in response to the 911 call. Using a description

of Appellant and the vehicle provided by Mr. McCardell, the trooper was able

to locate Appellant. He confirmed that the registration plate number of the

van matched that given by Mr. McCardell, and observed Appellant in the

driver’s seat. There was no one else in the van. Appellant complied with the

trooper’s directive to exit the vehicle, stumbling as he did so.

      In his initial encounter with the trooper, Appellant denied that he had

been in the liquor store. He then admitted that he had tried to purchase liquor

but had been refused service. The trooper described Appellant as disheveled,

with glassy and bloodshot eyes. The trooper stated that Appellant slurred his

words as he talked and the trooper smelled the odor of alcohol on his breath.

Appellant admitted that he had been drinking earlier in the day but was not

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forthcoming about what he consumed or the amount.             Appellant told the

trooper that his father had driven there and that his father was in the nearby

Walmart. Id. at 24. As the trooper waited with Appellant for his father to

appear, he attempted to conduct the walk-and-turn and one-foot-stand field

sobriety tests.     Appellant refused to cooperate.    After thirty-five to forty

minutes, Appellant admitted that his father was not in Walmart and had not

driven him there. Appellant insisted, however, that he did not drive to the

store.

         Based on his training and experience, as well as his interaction with

Appellant, Trooper Grossman concluded that Appellant was incapable of safe

driving and placed him under arrest. Appellant was transported to a nearby

hospital where he refused to submit to a blood test.

         While the DUI charge was pending before the jury, a brief bench trial on

the ignition interlock offense was conducted. A certified copy of the PennDot

record for Appellant, which reflected that Appellant had an ignition interlock

license, was introduced at the bench trial.1 Trooper Grossman testified that

the white van in which Appellant was located on March 15, 2017, did not

contain the ignition interlock. The trial court found Appellant guilty of driving

without the required ignition interlock system; the jury returned a guilty

verdict on the DUI charge.



____________________________________________


1 An ignition interlock license means that the license holder can only drive a
car where the ignition interlock system is installed.

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      Following his sentencing, Appellant filed a timely appeal to this Court.

He presents two issues for our review:

      I.    Whether the evidence presented at trial was sufficient to
            sustain a conviction for driving under the influence when the
            Commonwealth failed to prove that [Appellant] was driving,
            operating, or was in actual physical control of the vehicle?

      II.   Whether the evidence presented at trial was sufficient to
            sustain a conviction for driving without an ignition interlock
            device when the Commonwealth failed to prove that
            [Appellant] drove the vehicle?

Appellant’s brief at 5.

      Appellant challenges the sufficiency of the evidence underlying both of

his convictions. The standard we apply in reviewing such claims

      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.

Commonwealth v. Giordano, 121 A.3d 998, 1002-03 (Pa.Super. 2015)

(quoting Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa.Super. 2014)).

Evidence is sufficient to support the verdict when it establishes each material

element of the offense charged beyond a reasonable doubt. Commonwealth

v. Ansell, 143 A.3d 944, 949 (Pa.Super. 2016).




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      Both the offenses of DUI-general impairment and failure to use ignition

interlock system contain the element of driving a motor vehicle.           See 75

Pa.C.S. § 3802(a)(1) (DUI-general impairment: “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. § 3808(a)(1) (driving without required

ignition interlock: “An individual required to only drive, operate or be in actual

physical control of the movement of a motor vehicle equipped with an ignition

interlock system under any of the following who drives, operates or is in actual

physical   control   of   the   movement    of   a   motor   vehicle   within   this

Commonwealth . . .”).

      Appellant does not dispute the sufficiency of the evidence that he was

impaired or that he was a person required to only drive or operate a vehicle

specially equipped with an ignition interlock system. Rather, he challenges

the sufficiency of the Commonwealth’s proof that he was driving or in actual

physical control of the vehicle, an element of both crimes of which he was

convicted. Hence, we will address both issues together.

      Appellant contends that the Commonwealth only established that he

was seated in the vehicle when they arrived, not that he actually drove it. He

argues that Mr. McCardell’s testimony that he saw him drive into the parking

lot of the liquor store lacked credibility because the eyewitness did not report


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this information to police at the time.        The Commonwealth counters that

credibility issues implicate the weight of the evidence, not its sufficiency. See

Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa.Super. 2014). Furthermore,

the Commonwealth points out that weight challenges must be preserved

either on the record prior to sentencing or in a post-sentence motion, and

since Appellant did neither, the issue is waived. Moreover, the Commonwealth

contends that the evidence that Appellant drove the vehicle was more than

sufficient to support his convictions.

      Appellant’s attempt to discredit Mr. McCardell’s eyewitness testimony

that he saw Appellant drive into the store parking lot presents a challenge to

the weight of the evidence, not its sufficiency. Since Appellant did not raise

the issue orally, in a written motion prior to sentencing, or in a post-sentence

motion, it is waived. See Pa.R.Crim.P. 607(A) (“A challenge to the weight of

the evidence must be ‘raised with the trial court in a motion for a new trial:

(1) orally, on the record, at any time before sentencing; (2) by written motion

at any time before sentencing; or (3) in a post-sentence motion.’”).

      As to the sufficiency of the evidence that Appellant drove the van, Mr.

McCardell’s testimony that he saw Appellant drive the van into the lot is legally

sufficient to support the conviction. Moreover, Appellant fails to acknowledge

that Mr. McCardell also testified that he observed Appellant as he returned to

the white van, entered the driver’s seat, and drove the vehicle more than one

hundred yards to another parking space. Thus, the record reveals that the


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eyewitness saw Appellant drive the van on two occasions.2        Viewing the

evidence in the light most favorable to the Commonwealth as the verdict

winner, there is no merit in Appellant’s claim that the Commonwealth failed

to prove that he drove the vehicle.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/18




____________________________________________


2  Appellant asserted below, but abandoned on appeal, the argument that the
parking lot was not a highway or trafficway for purposes of the DUI statute.
Title 75 Pa.C.S. § 3101(b), provides that offenses “relating to driving after
imbibing alcohol or utilizing drugs shall apply upon highways and trafficways
throughout this Commonwealth.” 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.” See 75 Pa.C.S. §102; see also Commonwealth v.
Proctor, 625 A.2d 1221 (Pa.Super. 1993) (holding parking lot open to the
public is a trafficway for purposes of DUI statute).


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