J-S27032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    CHAD EDWARD PETROS                         :
                                               :
                      Appellant                :   No. 1573 WDA 2018

       Appeal from the Judgment of Sentence Entered October 2, 2018
     In the Court of Common Pleas of Greene County Criminal Division at
                       No(s): CP-30-CR-0000394-2016


BEFORE:      OLSON, J., OTT, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                                  FILED MAY 24, 2019

        Appellant, Chad Edward Petros, appeals from the aggregate judgment

of sentence of five days to six months of confinement, which was imposed

after his conviction at a bench trial for driving under the influence (“DUI”) of

alcohol or controlled substance (second offense) and operation of vehicle

without official certificate of inspection.1 We affirm.

        The facts underlying this appeal are as follows.     “On September 17,

2016, at approximately 9:15 p.m., a Hyundai Santa Fe was observed to be

parked perpendicular to [the r]oad.” Trial Court Opinion, 12/14/2018, at 3.

“[T]he headlights were on, . . . the vehicle was running, . . . the keys were

in the ignition, . . . the back and front wheels were off of the roadway, and


____________________________________________


1   75 Pa.C.S. §§ 3802(a)(1) and 4703(a), respectively.



*    Retired Senior Judge assigned to the Superior Court.
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the back wheels were in a ditch parallel to the roadway.”                Id. at 4.

Appellant “was located . . . very near the running vehicle” and “had a key in

his pocket” for the Hyundai Santa Fe, “in addition to the key located in the

ignition of the vehicle.”      Id. at 3-4.     “Directly across the street from the

vehicle was the residence of an off-duty Pennsylvania State Police Officer.

[Appellant]’s hands were zip-tied by the off-duty Officer and [Appellant] was

detained and restrained with zip-ties to await the arrival of on-duty

Pennsylvania State Police Officers.”           Id. at 3.   “No other individual was

located in the area[.]” Id. at 4.

       On August 28, 2018, following a bench trial, “[t]he [trial c]ourt had no

trouble determining that the motorist was highly intoxicated[,]” which

Appellant “essentially conceded.” Id. at 3.2

       On August 31, 2018, the [trial c]ourt issued its verdict. . . . On
       October 2, 2018, [Appellant] was sentenced to not less than 5
       days nor more than 6 months in the Greene County Prison, and
       [Appellant] has remained free on bail pending appeal. A timely
       notice of appeal was filed on October 31, 2018.

Id. at 2.3

       Appellant presents the following issue for our review:


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2 Appellant again concedes that he “was too intoxicated to drive safely” in
his brief to this Court. Appellant’s Brief at 17.
3 Appellant filed his statement of errors complained of on appeal on
November 26, 2018. The trial court entered its opinion on December 14,
2018.



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       Was the circumstantial evidence of the mere presence of the
       intoxicated owner of the car first observed thirty to fifty feet
       north of the opened passenger door of a vehicle enough proof
       beyond a reasonable doubt to convict of driving under the
       influence of alcohol?

Appellant’s Brief at 10.4

       This Court’s standard for reviewing sufficiency of the evidence
       claims 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.

          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. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
       2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
       (Pa.Super. 2012)).

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017)

(internal brackets omitted).


____________________________________________


4 Appellant does not challenge the sufficiency of the evidence to support his
conviction for operating a vehicle without valid inspection.



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     Appellant was convicted of DUI pursuant to subsection 3802(a)(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).

     In Commonwealth v. Williams, 941 A.2d 14, 26 (Pa. Super. 2008)

(en banc), an en banc panel of this Court considered a challenge similar to

Appellant’s claim that “the Commonwealth was unable to show [the

a]ppellant had ‘actual physical control’ of the vehicle.” This Court provided

the following guidance:

     The term “operate” requires evidence of actual physical control
     of the vehicle to be determined based upon the totality of the
     circumstances. . . . [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. The Commonwealth can establish that a
     defendant had “actual physical control” of a vehicle through
     wholly circumstantial evidence.

Id. at 27 (internal citations and some internal quotation marks omitted).

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court, we conclude

that Appellant’s issue merits no relief. When “all reasonable inferences [are]

drawn” from the evidence and when the evidence is “viewed in a light most

favorable to the Commonwealth as verdict winner,” Izurieta, 171 A.3d at

806, there was sufficient proof to support the fact that Appellant was

“driv[ing], operat[ing] or . . . in actual physical control of the movement of


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the   vehicle[.]”   75   Pa.C.S.   §3802(a).    As   the   trial   court   opinion

comprehensively discusses:

      The facts indicated that the vehicle was located perpendicular to
      a roadway. The [trial c]ourt determined that the headlights
      were on, that the vehicle was running, that the keys were in the
      ignition, that the back and front wheels were off of the roadway,
      and the back wheels were in a ditch parallel to the roadway.
      [Appellant] had a key in his pocket. This key in his pocket was
      in addition to the key located in the ignition of the vehicle. It
      was determined, by the [trial c]ourt, that the key in [Appellant]’s
      pocket was a key related to the Hyundai Santa Fe. No other
      individual was located in the area nor was any testimony
      presented which caused the [trial c]ourt to hesitate in
      determining that [Appellant] was the driver of the vehicle and
      that he was under the influence to a degree which rendered him
      incapable of safe driving.

      The [trial c]ourt will acknowledge that there was no direct
      evidence of [Appellant]’s operation of the vehicle and the
      attorney for [Appellant] indicates that the mere presence at the
      scene is insufficient to convict. The Commonwealth established
      more than mere presence. The Commonwealth established that
      the vehicle was running, and that the running vehicle was
      “parked” with its back wheels in a ditch and perpendicular to the
      traveled roadway. Further, the Commonwealth established that
      [Appellant] was present at the scene and no longer in his
      vehicle. The Commonwealth proved that [Appellant] was highly
      intoxicated and that a key which fit the vehicle was in the pocket
      of [Appellant].

Trial Court Opinion, 12/14/2018, at 4-5.

      Accordingly, all of the Williams factors were fulfilled: (1) “the motor

running”; (2) “the location of the vehicle” was “perpendicular to a roadway”

with “the back and front wheels . . . off of the roadway”; and (3) “additional

evidence showing that the defendant had driven the vehicle” included (a)

Appellant’s possession of a key to the automobile, and (b) the absence of



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anyone else who could have been the driver. Compare Trial Court Opinion,

12/14/2018, at 4, with Williams, 941 A.2d at 27.

     The circumstantial evidence enumerated by the trial court is sufficient

to satisfy the Commonwealth’s burden of proof, and it was the prerogative of

the trial court as fact-finder to resolve any doubts about Appellant’s guilt.

Williams, 941 A.2d at 27; Izurieta, 171 A.3d at 806. We cannot and will

not substitute our judgment for that of the trial court, as Appellant now

requests we do.

     Based on the foregoing, Appellant’s DUI conviction was established

beyond a reasonable doubt, and Appellant is not entitled to relief.      See

Izurieta, 171 A.3d at 806.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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