J.S17036/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
CHARLES F. MCINTYRE,                        :
                                            :
                          Appellant         :
                                            :     No. 1331 WDA 2015

             Appeal from the Judgment of Sentence August 21, 2015
        in the Court of Common Pleas of Fayette County Criminal Division
                        at No(s): CP-26-CR-0001961-2014

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED MARCH 2, 2016

          Appellant, Charles F. McIntyre, appeals from the judgment of

sentence entered in the Fayette County Court of Common Pleas following his

conviction for, inter alia, driving under the influence of alcohol1 (“DUI”).

Appellant challenges the sufficiency of the evidence. We affirm.

        The trial court ably summarized the underlying facts:

              Pennsylvania State Trooper Jonathan Monkelis was
           dispatched to Pennsylvania Route 119 near Englishman Hill
           Road in Bullskin Township, Fayette County, Pennsylvania
           on the evening of April 19, 2014, at 7:58 P.M. Upon arrival
           at the scene of the accident at 8:06 P.M., Trooper Monkelis
           found a truck with front end damage and damage to the
           passenger side windshield. Trooper Monkelis questioned
           [Appellant] in order to ascertain what had happened, and
           [Appellant] told [him] that he had been drinking


*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802.
J.S17036/16

       throughout the entire day, and had consumed
       approximately thirty cans of Keystone Red beer and a
       bottle of wine. He also told the trooper that he had crashed
       into a tree, but continued driving in an attempt to reach
       his residence. [Appellant] explained the scene at which he
       and the officer were standing by saying that the truck had
       stalled out when he reached Englishman Hill Road, and
       someone had helped push it to the side of the road while
       [Appellant] sat in the driver’s seat, but it drifted off of the
       road and went into a ditch, where Trooper Monkelis saw
       the right front tire resting when he was at the scene. The
       back end of [Appellant’s] truck was partially blocking the
       travel portion of the road. [Appellant] was the only person
       present who was in the vehicle at the time it entered the
       ditch.

           The trooper observed five open empty cans of
       Keystone Red beer and an open gallon bottle of Richards
       Wild Irish Rose wine, which was about one-quarter full, in
       the bed of [Appellant’s] truck. Trooper Monkelis then
       smelled a very strong odor of alcohol on [Appellant’s]
       person,     and    [Appellant’s]  eyes    were   bloodshot.
       [Appellant] was not asked to do field sobriety tests
       because he told the officer he was unable to perform them
       due to an old injury. [Appellant] was then arrested on
       suspicion of DUI, and transported to the hospital for a
       blood draw. Trooper Monkelis obtained a search warrant
       for the blood from a magisterial district judge, and the
       blood was drawn in the hospital at 9:03 P.M. on April 19,
       an hour after Trooper Monkelis arrived at the scene where
       [Appellant] had caused his vehicle to go into a ditch. The
       test result for [Appellant’s] BAC was, as found by the jury,
       0.231, well above the .08 statutory threshold set forth in
       the DUI statute, 75 [Pa.C.S.] § 3802.

          The Court took judicial notice of the fact that
       Pennsylvania Route 982 is a heavily travelled roadway,
       and the trooper also testified that the route is a main road
       with heavy traffic on it. Witness Francis Shuman testified
       that he saw the accident scene on Route 982, and spoke
       with [Appellant] at the scene to see if he needed help. Mr.
       Shuman told the jury that [Appellant] was the only person
       around and was already out of his vehicle, looking at the
       damage. [Appellant] said to Mr. Shuman, “I wrecked,”


                                    -2-
J.S17036/16

         and his buddy was coming to pull him out. Mr. Shuman
         estimated he stayed on the scene with [Appellant] for
         about five minutes, observed [Appellant] to have slurred
         speech and wobble on his feet, and was concerned about
         the possibility of [Appellant] driving so he went to the
         Sheetz gas station about one minute down the road to call
         911. The sealed record from Fayette 911, admitted into
         evidence as Exhibit 5, established that Mr. Shuman’s call
         was received at 7:51:25 P.M. on April 19, 2014. Exhibit
         No. 5 also reveals that two more people called to report
         the same accident within two minutes after Mr. Shuman’s
         call.

Trial Ct. Op., 9/16/15, at 1-3 (citations omitted).2     After a jury trial, on

August 6, 2015, Appellant was convicted of two counts of driving under the

influence of alcohol and five summary offenses. On August 21, 2015, the

trial court sentenced Appellant to a term of eighteen to sixty months of

incarceration. This timely appeal followed.

      Appellant raises the following two issues:

         Whether the Commonwealth presented sufficient evidence
         to establish that [Appellant’s] blood was properly drawn
         within two (2) hours after driving a motor vehicle as
         required by [75] Pa.C.S.A. § 3802(c)?

         Whether the Commonwealth sufficiently established that
         [Appellant] drove, operated or was in actual physical
         control of the automobile?

Appellant’s Brief at 7.




2
  We note that Appellant also testified at trial. N.T. Trial, 8/5/15, at 95-102.
Significantly, Appellant admitted to driving the vehicle at issue stating: “Yes,
I drove it,” and “How else was I going to get home? I ain’t walking.” Id. at
101.



                                     -3-
J.S17036/16

      In the instant case, for purposes of expediency, we will address

Appellant’s issues in reverse order.    In his second issue, Appellant argues

that the evidence was not sufficient to establish that he was driving his

vehicle at all during the incident in question. Specifically, Appellant alludes

to the contention that someone else was driving at the time of the accident.

He points out that no witness at trial could directly testify that they saw him

behind the wheel or even inside the vehicle. Appellant’s Brief at 13.

       The standard of review for a sufficiency of the evidence challenge is

well-established:

         In reviewing the sufficiency of the evidence, we examine
         whether the evidence admitted at trial, and all reasonable
         inferences drawn therefrom, viewed in the light most
         favorable to the Commonwealth as verdict winner, support
         the jury’s findings of all the elements of the offense
         beyond a reasonable doubt. The Commonwealth may
         sustain its burden by means of wholly circumstantial
         evidence.

Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013) (citations

omitted), cert. denied, 135 S. Ct. 221 (2014).

      Further, we note that “[u]nder 75 Pa.C.S.A. § 3802(c), 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.”        Commonwealth v.

Rakowski, 987 A.2d 1215, 1217 (Pa. Super. 2010) (holding, inter alia, that


                                       -4-
J.S17036/16

the evidence was sufficient to support the petitioner’s conviction under 75

Pa.C.S. § 3802(c), where all reasonable inferences from the testimony,

when viewed in the light must favorable to the verdict winner, could

establish that petitioner’s blood alcohol level was above 0.16 within two

hours of his operating a vehicle).

       The trial court found Appellant’s second issue to be “frivolous” and

we agree. Trial Ct. Op. at 4. As the trial court properly cited, both Trooper

Monkelis and witness Shuman testified that Appellant had confessed to

driving the car during the accident. Id.      Further, Appellant admitted to

driving the car during the incident in question during his cross-examination

at trial stating, “Yes, I drove it.” N.T. Trial at 101. According, we hold that

the evidence was sufficient to establish that Appellant was operating the

vehicle, as required under 75 Pa.C.S. § 3802(c), and Appellant’s second

issue on appeal is meritless. See Mattison, 82 A.3d at 392.

      Turning to his first issue, Appellant asserts that the evidence

presented was insufficient to establish that his blood alcohol level was above

0.16 within two hours of his operation of a vehicle. In particular, Appellant

argues that witness Shuman testified that he saw Appellant’s damaged

vehicle at approximately 7:39 p.m. on the evening in question, but the

vehicle could have been stopped there long before that time and Appellant’s

blood was drawn at 9:03 p.m. that evening. The trial court did not agree,

instead emphasizing that witness Shuman, as well as two additional 911



                                     -5-
J.S17036/16

callers, could place Appellant with his vehicle disabled in a ditch, within an

hour and fifteen minutes of the time Appellant had his blood drawn. Trial Ct.

Op. at 3-4. The court concluded that because the route in question is a very

heavily travelled road, a fair inference is that the accident scene was not

present for more than a few minutes before the three 911 callers alerted

police. Id. We agree.

      When viewing the evidence in the light most favorable to the

Commonwealth, as the verdict winner, we hold that the evidence was

sufficient to establish that Appellant’s blood alcohol level was above 0.16

within two hours of his operation of his vehicle. As noted, it is well-settled

that circumstantial evidence is sufficient to satisfy the Commonwealth’s

burden of proof. See Mattison, 82 A.3d at 392. In this case, although the

Commonwealth did not present evidence that would establish the exact

time of Appellant’s accident, sufficient circumstantial evidence established

the approximate time within a few minutes.         Thus, sufficient evidence

established that Appellant’s blood alcohol level was 0.16 within two hours of

his operation of a vehicle as set forth under 75 Pa.C.S. § 3802(c); See

Rakowski, 987 A.2d at 1217. Therefore, Appellant’s first issue on appeal

must also fail. Accordingly, we affirm the trial court’s judgment of sentence.

      Judgment of sentence affirmed.




                                     -6-
J.S17036/16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/2/2016




                          -7-
