J-S46001-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                    v.

AMADOR CURIEL GARCIA

                         Appellant                  No. 2112 MDA 2016


          Appeal from the Judgment of Sentence November 22, 2016
                In the Court of Common Pleas of Fulton County
             Criminal Division at No(s): CP-29-CR-0000018-2016


BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                      FILED SEPTEMBER 15, 2017

      Amador Curiel Garcia appeals from his judgment of sentence of sixty

months     county   intermediate     punishment,    including   ninety   days

incarceration, imposed after the trial court convicted him of one count of

driving under the influence (“DUI”) – general impairment, one count of DUI

– highest rate of alcohol, and careless driving. We affirm.

      The following facts underlie this matter. At approximately 4:45 p.m.,

on October 25, 2015, Trooper Richard Hughes responded to a reported

domestic dispute occurring at the Downes Motel in Fort Littleton, Fulton

County.    Upon arriving at the scene, Trooper Hughes observed Appellant

sitting in the driver’s seat of a black Dodge Durango, which was still running

while parked in the motel parking lot.      Appellant indicated that he was


* Former Justice specially assigned to the Superior Court.
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transporting his daughter to State College, where she attended Pennsylvania

State University.

      While conversing with Appellant, Trooper Hughes detected the odor of

alcohol emanating from the vehicle. He noted that Appellant’s breath also

smelled of alcohol, that he had glassy, bloodshot eyes, and that his speech

was slurred. Appellant denied imbibing any alcohol. Nevertheless, based on

his observations, Trooper Hughes suspected that Appellant could not safely

operate the vehicle, and asked him to exit the vehicle.          Following field

sobriety tests, Appellant agreed to take a preliminary breath test.        As a

result of these assessments, Trooper Hughes transported Appellant to the

Fulton County Medical Center.       A blood test was administered, and the

subsequent results revealed that Appellant had a blood alcohol content of

.162% within two hours of operating the vehicle.

      Following a bench trial, Appellant was convicted of the aforementioned

offenses.   He filed a timely notice of appeal and complied with the trial

court’s order to file a Rule 1925(b) concise statement of errors complained

of on appeal.    The trial court authored a Rule 1925(a) opinion and this

matter is now ready for our review.

      Appellant raises a single question for our consideration: “Was the trial

court’s finding that Appellant was seated in the driver’s seat of a running

vehicle sufficient to find that he was in actual physical control of the vehicle,

when the record established that Appellant was joined by another licensed

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driver, the vehicle was appropriately parked in a motel parking space, and

Appellant was engaged in a telephone conversation with his wife?”

Appellant’s brief at 5.

      Appellant contests the sufficiency of the evidence underpinning his DUI

convictions. A challenge to the sufficiency of the evidence raises a question

of law. Thus, our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super. 2017).

Further, “[i]n assessing Appellant’s sufficiency challenge, we must determine

whether,    viewing   the   evidence   in   the   light   most   favorable   to   the

Commonwealth as verdict winner, together with all reasonable inferences

therefrom, the trier of fact could have found that the Commonwealth proved

[each] element of the crime beyond a reasonable doubt.”               Id. (citation

omitted). In addition, “[t]he evidence need not preclude every possibility of

innocence and the fact-finder is free to believe all, part, or none of the

evidence presented.” Id. (citation omitted).

      Appellant asserts that there was insufficient evidence to convict him of

DUI. The relevant statute reads, in pertinent part, as follows:

   (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.



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            ....

    (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(a) and (c).

          Specifically, Appellant argues that the Commonwealth failed to

establish that he was in actual physical control of the vehicle as required by

the   Crimes       Code.1    He    maintains     that,   under   the   totality   of   the

circumstances, the Commonwealth did not adduce any proof that Appellant,

rather than his daughter, was driving the vehicle.               He asserts that his

daughter was a licensed driver, that the car was parked in the motel parking

lot when the police arrived, and, although Appellant was sitting in the

driver’s seat, he was merely talking on the phone with his wife at the time.

Appellant further questions the reliability of Trooper Hughes’ testimony that

the vehicle was running during the traffic stop, and downplays the

implication that he himself conceded that he was “taking” his daughter to

State College. Appellant’s brief at 10. Thus, he concludes that the record

does not support his convictions for DUI.
____________________________________________


1
  During the bench trial, the parties stipulated that Appellant’s blood was
drawn at 5:45 p.m., and that subsequent testing revealed he had a blood
alcohol content of .162%. N.T. Trial, 8/30/16, at 16-17.



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      We observe that the term “operate” as used in § 3802 “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. Lees, 135 A.3d 185, 189

(Pa.Super. 2016) (citation omitted).         When determining whether the

Commonwealth proffered evidence that an individual was operating or in

actual physical control of the vehicle, we consider the following factors: “the

motor running, the location of the vehicle, and additional evidence showing

that the defendant had driven the vehicle.”        Commonwealth v. Toland,

995 A.2d 1242, 1246 (Pa.Super. 2010) (citation omitted).           We make this

determination based on the totality of the circumstances. Id.

      Instantly,    Trooper   Hughes   testified   that,   when   he   approached

Appellant’s vehicle, the car was running and Appellant was sitting in the

driver’s seat.     N.T. Trial, 8/30/16, at 7-9.    During questioning, Appellant

stated that “he was taking his daughter to college in State College, PA.”     Id.

at 10, 13.    The trooper also noted that the parking lot was open to the

public. Id. at 13-14. The record further reveals that the two were traveling

from Fredrick, Maryland, and had a dispute during that trip which gave rise

to the police being called.

      Upon review of the certified record, we find that, when viewing the

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

there is sufficient evidence to support Appellant’s convictions for DUI beyond

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a reasonable doubt. Under the totality of the circumstances, the trier-of-fact

could have reasonably inferred from Appellant’s location in the driver’s seat,

with the engine running, that he had been in actual physical control of the

vehicle as he and his daughter traveled from Maryland to State College.

This inference is corroborated by Appellant’s concession that he was “taking

his daughter to college.”   Id. at 10.   Further, although Appellant did not

directly challenge this aspect of the crime, it is well-established that a

parking lot that is used by the public constitutes a “trafficway” for the

purposes of the Vehicle Code.     Lees, supra at 189 (observing, “Even if

restricted by signs, if a parking lot is used by members of the public, it is a

trafficway for purposes of 75 Pa.C.S. § 3101.” (citing Commonwealth v.

Wilson, 553 A.2d 452, 454 (Pa.Super. 1989)).

      Moreover, we note that Appellant’s argument that another licensed

driver was present is of no moment, as the evidence adduced at trial need

not preclude every possibility of innocence. Giron, supra. Finally, the court

credited the testimony of Trooper Hughes, and that testimony is supported

by the evidence of record.     Hence, when considering the totality of the

circumstances in the light most favorable to the Commonwealth as verdict

winner, there was sufficient evidence to support Appellant’s conviction for

DUI. As such, Appellant’s claim fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2017




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