J-S22010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSE LUIS NUNEZ-AVALOS                     :
                                               :
                       Appellant               :   No. 1879 MDA 2018

       Appeal from the Judgment of Sentence Entered October 25, 2018
      In the Court of Common Pleas of Adams County Criminal Division at
                        No(s): CP-01-CR-0001417-2017


BEFORE:      SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                              FILED AUGUST 14, 2019

       Appellant, Jose Luis Nunez-Avalos, appeals from the judgment of

sentence entered following his convictions for driving under the influence of

alcohol (“DUI”) general impairment, DUI highest rate of alcohol, and driving

without a license.1 We affirm.

       The trial court summarized the factual and procedural history of this

case as follows:

             Testimony developed at the non-jury trial held on
       August 21, 2018[,] revealed the following events occurred. On
       November     7,   2017[,]   at   approximately     4:09    p.m.,
       Trooper Manivong of the Pennsylvania State Police was dispatched
       to the area of 122 Kime Avenue in Bendersville Borough, Adams
       County, Pennsylvania[,] for a report of a possible intoxicated
       driver that had picked up children.4 Upon arrival at 122 Kime
____________________________________________


1 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(c) with enhancements under
75 Pa.C.S. §§ 3804(c.1) and 3803(b)(5); and 75 Pa.C.S. § 1501(a).
Sentencing Order, 10/30/18, at 1.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     Avenue, Trooper Manivong observed a tan Ford F150 pickup
     parked partially on Kime Avenue with its break lights illuminated.5
     Trooper Manivong approached the driver’s side of the vehicle,
     observed the engine running, and identified Appellant as the
     driver.

           4 Trooper Laythong Manivong is a Pennsylvania State
           Trooper with ten (10) and a half years of experience
           as a law enforcement officer. Trooper Manivong has
           training in criminal law, traffic law, Standard Field
           Sobriety Test (“SFST”), and has taken the Advanced
           Roadside Impairment Driving Course (“ARIDE”).
           Trooper Manivong has handled over one hundred DUI
           arrests in his career.

           5 Kime Avenue is an undivided two lane road at that
           location.

           Trooper Manivong made contact with Appellant and asked
     Appellant “Sir, are you here to pick up children?”6 There were two
     minor children located in the back seat of the vehicle. The children
     were not properly restrained by a child car seat or youth car seat.7

           Trooper Manivong detected an odor of alcohol emanating
     from Appellant while speaking with him. Trooper Manivong
     observed Appellant was lethargic and had glassy red eyes.
     Trooper Manivong escorted Appellant’s children from the vehicle
     to the nearby home of Appellant’s estranged wife. Trooper
     Manivong then instructed Appellant to shut off and exit the
     vehicle. Appellant told Trooper Manivong he could not find his
     driver’s license and did not produce a driver’s license during his
     interaction with Trooper Manivong.8

           6Appellant did not have a fixed address. His estranged
           wife had a Protection from Abuse order against him at
           the time. Appellant was residing at a temporary
           address.

           7 The exact age of the children was not testified to.
           Trooper Manivong testified the children were under
           the age of 18 and needed child restraint seats.




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           8  At trial, Trooper Manivong testified he was still
           unable to determine if Appellant has a valid driver’s
           license.

           Trooper Manivong had Appellant perform the one-leg stand
     and the walk-and-turn test. When asked to perform the one-leg
     stand, Appellant indicated he understood the instructions.
     Trooper Manivong observed several indicators of intoxication
     during the one-leg stand test. Next, Appellant was asked to
     perform the walk-and-turn test. Appellant indicated that he
     understood the instructions and attempted to perform the test.
     Appellant failed to successfully perform or complete the walk-and-
     turn test.    Based on his observations and interaction with
     Appellant, Trooper Manivong determined that Appellant was
     intoxicated to a degree that rendered Appellant incapable of safely
     operating a motor vehicle. Trooper Manivong placed Appellant
     under arrest for DUI.9

           Trooper Manivong transported Appellant to Gettysburg
     Hospital for a blood draw. Appellant consented to a blood draw,
     which was conducted at 5:22 p.m. The blood was sealed in a
     blood kit and sent for testing. A stipulated lab report, admitted
     as Commonwealth’s Exhibit 1, indicated Appellant had a blood
     alcohol content of .233 percent.10

           This [c]ourt found Appellant guilty of all charges. On
     October 25, 2018, this [c]ourt sentenced Appellant to twenty[-
     ]four months in the intermediate punishment program with 120
     days restrictive intermediate punishment.11, 12 On November 14,
     2018, Appellant timely filed his Notice Of Appeal. On November
     19, 2018, this [c]ourt ordered Appellant to file a concise statement
     of matters complained of on appeal. Appellant timely filed his
     Concise Statement on December 4, 2018.

           9 A DVD recording of the MVR in Trooper Manivong’s
           patrol car was played for this [c]ourt. The recording
           was admitted as Commonwealth’s Exhibit 2.
           Approximately 12 minutes of the MVR was played at
           trial and corroborated Trooper Manivong’s testimony.

           10There was a stipulation that Appellant had already
           received ARD for a prior DUI in Adams County and this
           was a second offense DUI for mandatory sentencing
           purposes.

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            11Count one merged with count two for sentencing
            purposes.

            12The restrictive intermediate punishment portion of
            the sentence consisted of 60 days at the work release
            facility of the Adams County Adult Correctional
            Complex and 60 days to be served on house arrest
            with electronic monitoring.       Appellant was also
            sentenced to a mandatory 100 hours of community
            service as well as applicable fines and costs.

Trial Court Opinion, 12/13/18, at 1-3. The trial court filed its opinion pursuant

to Pa.R.A.P. 1925(a).

      On appeal, Appellant presents the following issue for our review:

“Whether the evidence presented at trial was sufficient to prove beyond a

reasonable doubt that [Appellant] was in actual physical control of the

movement of the vehicle?” Appellant’s Brief at 7. Appellant asserts that at

the time of his encounter with Trooper Manivong, Appellant’s vehicle was

parked near the side of a street in a residential neighborhood.       Id. at 12.

Appellant acknowledges that “the engine was running and [Appellant’s] two

minor children were seated, unrestrained, in the backseat.” Id. Appellant

maintains that the Commonwealth did not produce credible evidence that he

was observed driving prior to his apprehension.        Id.   Instead, Appellant

counters, the evidence was consistent with his using the vehicle for shelter.

Id. at 14. Appellant argues that case law makes clear that “it is not a crime

to merely sit in a car while intoxicated.” Id. at 15. Appellant argues that

because the evidence falls short of the “proof beyond a reasonable doubt”




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standard, the convictions should be vacated and Appellant should be

discharged. Id.

      The standard for evaluating sufficiency claims is as follows:

      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 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. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      A violation for DUI pursuant to 75 Pa.C.S. § 3802(a)(1) is defined 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.

75 Pa.C.S. § 3802(a)(1). 75 Pa.C.S. § 3802(c) further provides:




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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(c).

      “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).

      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 DUI. Williams, 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


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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 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.        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).

      In addressing Appellant’s issue, the trial court provided the following

analysis:

            Upon arriving at 122 Kime Avenue, Trooper Manivong
      observed Appellant’s vehicle parked partially in the lane of travel
      on Kime Avenue with its break lights illuminated and engine
      running. Trooper Manivong approached Appellant’s vehicle and
      observed Appellant in the driver’s seat. When asked what
      Appellant was doing there, Appellant replied he was there to pick

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       up his children, who were located in the back seat of Appellant’s
       vehicle. Appellant’s vehicle was parked near his estranged wife’s
       residence. Appellant does not reside with his estranged wife, and
       she had a Protection from Abuse order against Appellant at the
       time. These circumstances support an inference Appellant was in
       actual physical control of his vehicle when Trooper Manivong had
       contact with Appellant and that Appellant had driven his vehicle
       to 122 Kime Avenue shortly before Trooper Manivong arrived on
       the scene.

Trial Court Opinion, 12/13/18, at 6.

       We agree with the trial court’s conclusion.        Here, the totality of

circumstances established that Appellant was in actual physical control of the

vehicle.    The record reflects that when Trooper Manivong approached

Appellant’s vehicle, it was parked partially in the lane of travel on Kime Avenue

with its break lights illuminated and engine running. N.T., 8/21/18, at 6-7,

20. Appellant was in the driver’s seat of the vehicle. Id. Appellant, who did

not live nearby, informed Trooper Manivong that he was there to pick up his

children, who were at the time in the backseat of the vehicle, unrestrained.

Id. at 7-8, 21, 24. Thus, as the trial court found, the totality of circumstances

supports the conclusion that Appellant was in actual physical control of the

vehicle.2    Furthermore, as is made clear by case law and contrary to

Appellant’s assertion, there is no requirement that Appellant actually be

observed driving the vehicle for a determination to be made that he was in



____________________________________________


2   Appellant does not challenge the fact that he was intoxicated.



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actual physical control of the vehicle for purposes of the DUI statute. 3

Johnson, 833 A.2d at 263. Appellant is entitled to no relief.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 08/14/2019




____________________________________________


3  Appellant relies on Commonwealth v. Byers, 650 A.2d 468, 469 (Pa.
Super. 1994), in support of his claim, and argues that Byers stands for the
proposition that “actual physical control” requires “at a very minimum, a
parked car should be started and running before a finding of actual physical
control can be made.” Appellant’s Brief at 12. As the record reflects, in this
case the vehicle’s engine was on, the vehicle was parked partially in the
roadway, Appellant was in the driver’s seat, and the brake lights were on
indicating that Appellant had his foot on the brake pedal. Thus, the factors in
this case creating an inference that Appellant was in actual physical control of
the vehicle exceed the minimum evidentiary factors Appellant maintains must
exist pursuant to Byers.

  We further note that, while not overruling Byers, the Pennsylvania Supreme
Court strongly criticized it in Commonwealth v. Wolen, 685 A.2d 1384 (Pa.
1996) (plurality): “While it may be laudable that one who realizes that he is
incapable of safe driving pulls over to ‘sleep it off,’ the legislature has made
no exception to the reach of the statute to such individuals. Accordingly, such
a person’s threat to public safety is not a relevant consideration under the
drunk driving statutes.” Id. at 1386 n.4.

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