J-A19001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    MARIO C. BOLOGNA                           :
                                               :
                       Appellant               :       No. 63 MDA 2018

            Appeal from the Judgment of Sentence October 17, 2017
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0006082-2016


BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.:                          FILED OCTOBER 22, 2018

        Appellant, Mario C. Bologna, appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas, following his bench

trial convictions for driving under the influence of alcohol (“DUI”) and careless

driving.1 We affirm.

        In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises the following issues for our review:

           DUI REQUIRES THE DEFENDANT TO BE IN ACTUAL
           PHYSICAL CONTROL OF THE VEHICLE. UNDER THE CORPUS
           DELICTI RULE, A CONVICTION CANNOT BE BASED ON AN
           ADMISSION BY THE DEFENDANT UNLESS IT IS
           CORROBORATED       BY    INDEPENDENT     EVIDENCE
____________________________________________


1   75 Pa.C.S.A. §§ 3802(a)(1) and 3714(a), respectively.
J-A19001-18


         ESTABLISHING THE CORPUS DELICTI. DID THE TRIAL
         COURT ERR IN DENYING [APPELLANT’S OMNIBUS PRE-
         TRIAL MOTION] WHEN THERE IS NO INDEPENDENT
         EVIDENCE ESTABLISHING THE CORPUS DELICTI?

         WHETHER THERE WAS INSUFFICIENT EVIDENCE FOR THE
         CONVICTION OF DUI: GENERAL IMPAIRMENT, WHEN THERE
         WAS NO EVIDENCE THAT [APPELLANT] WAS IN ACTUAL
         PHYSICAL CONTROL AS HE WAS FOUND ASLEEP IN THE
         PASSENGER SEAT OF THE PICKUP TRUCK?

         WHETHER THE JUDGE’S FINDING OF GUILT FOR DUI:
         GENERAL IMPAIRMENT IS AGAINST THE WEIGHT OF THE
         EVIDENCE WHEN THE COMMONWEALTH DID NOT PROVE
         BEYOND A REASONABLE DOUBT THAT [APPELLANT] WAS IN
         ACTUAL PHYSICAL CONTROL OF THE PICKUP TRUCK AS NO
         ONE SAW HIM DRIVE THE PICKUP TRUCK?

(Appellant’s Brief at 5).

      Appellant argues that, under the corpus delicti rule, the court should

have granted his omnibus pretrial motion to suppress his admission to

drinking and driving because the Commonwealth failed to establish that it was

more likely than not that a DUI occurred. Appellant contends no accident

happened and no signs of drunk driving were present. Appellant claims the

evidence only demonstrates that he was asleep in the passenger seat of his

truck when it rolled into the roadway. Alternatively, Appellant reasons the

court should have excluded his confession at trial because there was no

evidence independent of the admission to establish that a DUI had occurred.

Appellant maintains no evidence demonstrated he had ever operated or was

in physical control of the truck. Rather, Appellant insists he was simply asleep

in the passenger seat when the truck rolled into the road, so there was no


                                     -2-
J-A19001-18


criminal act of DUI when he was arrested.

      Appellant also alleges the evidence at trial was insufficient to find

Appellant guilty of DUI because (1) there was no evidence that Appellant drove

or was in physical control of the truck; (2) Appellant was asleep in the

passenger seat of the truck; (3) the truck was legally parked before it rolled

into the road; and (4) it was not possible to know if anyone had exited the

truck while it was parked in the convenience store parking lot. For similar

reasons, Appellant contends his conviction for DUI is also against the weight

of the evidence. Appellant concludes this Court should vacate his conviction

and/or vacate and remand for a new trial. We disagree.

      We review the denial of a suppression motion as follows:

         Our standard of review in addressing a challenge to a trial
         court’s denial of a suppression motion is limited to
         determining whether the factual findings are supported by
         the record and whether the legal conclusions drawn from
         those facts are correct.

            [W]e may consider only the evidence of the
            prosecution and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole. Where the record
            supports the findings of the suppression court, we are
            bound by those facts and may reverse only if the court
            erred in reaching its legal conclusions based upon the
            facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super. 2008) (en

banc) (internal citations and quotation marks omitted).      “It is within the

suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given their testimony.” Commonwealth v.

                                    -3-
J-A19001-18


Clemens, 66 A.3d 373, 378 (Pa.Super. 2013) (quoting Commonwealth v.

Gallagher, 896 A.2d 583, 585 (Pa.Super. 2006)).

      “The corpus delicti rule is an evidentiary one. On a challenge to a trial

court’s evidentiary ruling, our standard of review is one of deference.”

Commonwealth v. Herb, 852 A.2d 356, 362-63 (Pa.Super. 2004) (internal

citations omitted).

            The admissibility of evidence is solely within the
            discretion of the trial court and will be reversed only if
            the trial court has abused its discretion. An abuse of
            discretion is not merely an error of judgment, but is
            rather the overriding or misapplication of the law, or
            the exercise of judgment that is manifestly
            unreasonable, or the result of bias, prejudice, ill-will
            or partiality, as shown by the evidence of record.

Commonwealth v. Dent, 837 A.2d 571, 577 (Pa.Super. 2003), appeal

denied, 581 Pa. 671, 863 A.2d 1143 (2004) (internal citations omitted).

         Under Pennsylvania law, the application of the corpus delicti
         rule occurs in two distinct phases. The first phase involves
         the court’s application of a rule of evidence governing the
         threshold question of the admissibility of the confession. In
         this first phase of the rule’s application, the court must
         determine whether the Commonwealth has proven the
         corpus delicti of the crimes charged by a mere
         preponderance of the evidence. If the court is satisfied that,
         on the evidence presented, it is more likely than not that a
         wrong has occurred through criminal agency, then the
         confession and/or admissions of the defendant are
         admissible.

         The second phase of the rule’s application occurs after a
         confession has already been admitted into evidence. After
         the court has made its initial determination that the
         Commonwealth has proved the corpus delicti by a
         preponderance of the evidence and has ruled the confession
         to be admissible, the corpus delicti rule additionally

                                      -4-
J-A19001-18


         requires that the Commonwealth prove to the jury’s
         satisfaction beyond a reasonable doubt, the corpus
         delicti of the crimes charged.

Commonwealth v. Ahlborn, 657 A.2d 518, 521 (Pa.Super. 1995), appeal

denied, 547 Pa. 713, 688 A.2d 170 (1997) (emphasis in the original). In other

words, “[t]he Commonwealth need not prove the existence of a crime beyond

a reasonable doubt as an element in establishing the corpus delicti of a crime,

but the evidence must be more consistent with a crime than with [an]

accident.   The corpus delicti, or ‘body of the crime,’ may be proven by

circumstantial evidence.” Commonwealth v. Murray, 174 A.3d 1147, 1154

(Pa.Super. 2017), appeal denied, ___ Pa. ___, 187 A.3d 204 (2018).

         Only inculpatory statements fall within the scope of the
         corpus delicti rule.     Before such a statement may be
         admitted into evidence, the Commonwealth must establish:
         1) a loss has occurred and 2) the loss occurred as a result
         of criminal activity. Only then may the Commonwealth
         introduce a statement to show that the defendant is
         responsible for the loss. For the purpose of admission, the
         corpus delicti may be established by a preponderance of the
         evidence. Moreover, the Commonwealth may establish the
         corpus delicti with circumstantial evidence.

Herb, supra at 363 (internal citations and quotation marks omitted).

      Under the corpus delicti rule, the Commonwealth may not obtain a

conviction based solely on extra-judicial inculpatory statements of the

accused, without independent corroboration that a crime actually occurred.

Commonwealth v. McMullen, 545 Pa. 361, 681 A.2d 717 (1996). “The rule

is designed to guard against the hasty and unguarded character which is often

attached to confessions and admissions and the consequent danger of a

                                     -5-
J-A19001-18


conviction where no crime has in fact been committed.” Id. at 368, 681 A.2d

at 721 (quotation marks omitted). The concern for error in this context is

minimized in a bench trial. See Commonwealth v. Konias, 136 A.3d 1014,

1022 (Pa.Super. 2016), appeal denied, 636 Pa. 673, 145 A.3d 724 (2016)

(citing Commonwealth v. Smith, 97 A.3d 782, 788 (Pa.Super. 2014)

(reiterating general rule that trial court, sitting as trier of fact, “is presumed

to know the law, ignore prejudicial statements, and disregard inadmissible

evidence”)).

      Appellate review of a claim challenging the sufficiency of the evidence

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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting


                                      -6-
J-A19001-18


Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

      The following principles apply to a weight of the evidence claim:

            The weight of the evidence is exclusively for the finder
            of fact who is free to believe all, part, or none of the
            evidence and to determine the credibility of the
            witnesses. An appellate court cannot substitute its
            judgment for that of the finder of fact. Thus, we may
            only reverse the…verdict if it is so contrary to the
            evidence as to shock one’s sense of justice.

         Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
         666, 672-73 (1999). Moreover, where the trial court has
         ruled on the weight claim below, an appellate court’s role is
         not to consider the underlying question of whether the
         verdict is against the weight of the evidence. Rather,
         appellate review is limited to whether the trial court palpably
         abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

      Section 3802 of the Motor Vehicle Code provides:

         § 3802.     Driving under influence of alcohol or
         controlled substance

            (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.A. § 3802(a)(1). Additionally, Section 3714 states:



                                         -7-
J-A19001-18


         § 3714. Careless driving

            (a) General rule.—Any person who drives a vehicle in
            careless disregard for the safety of persons or property
            is guilty of careless driving, a summary offense.

                                   *     *    *

75 Pa.C.S.A. § 3714(a).

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

applicable law, and the well-reasoned opinion of the Honorable Richard A.

Lewis, P.J., we conclude Appellant’s issues merit no relief.         The trial court

opinion comprehensively discusses and properly disposes of the questions

presented. (See Trial Court Opinion, filed January 30, 2018, at 3-9) (finding:

(1)   Commonwealth     presented       evidence   at   suppression    hearing   that

Appellant’s truck was blocking roadway lane of travel; Appellant was

unconscious in passenger seat; no one else was near vehicle; vehicle was

registered to Appellant; keys were in ignition, headlights were on, and vehicle

was in neutral; when Appellant finally awoke after detective’s repeated

knocking, detective noticed strong odor of alcohol on Appellant, and

Appellant’s rolling eyes and slurred speech; evidence showed someone had

operated motor vehicle while intoxicated; at this point, Appellant stated he

had consumed alcohol and was driver of vehicle; Commonwealth established

by preponderance of evidence at suppression hearing that drunk driving had

occurred, and suppression of Appellant’s confession was unwarranted; (2-3)

evidence showed Appellant’s vehicle was sitting outside of establishment that



                                        -8-
J-A19001-18


does not serve alcohol and there was no evidence that Appellant had

consumed alcohol nearby; vehicle was blocking roadway lane of travel and

was illegally “parked” (in neutral gear); Appellant was sleeping in passenger

seat slumped over center console, engine was running and headlights were

on; vehicle was registered to Appellant; detective had difficultly waking

Appellant; Appellant showed signs of visible intoxication, had strong odor of

alcohol, his eyes were rolling, and he had extremely slurred speech; there was

no one else around and store video surveillance did not show anyone else

driving vehicle; Appellant admitted drinking and driving; court found

detective’s testimony credible; totality of circumstances supported inference

that Appellant had driven his vehicle to store while intoxicated and was in

actual physical control of vehicle at time of his arrest; sufficient evidence

established Appellant was guilty of DUI and verdict did not shock court’s sense

of justice; Appellant’s sufficiency and weight claims fail).   Accordingly, we

affirm on the basis of that opinion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2018




                                       -9-
,                                                                                                Circulated 10/05/2018 12:14 PM



         COMMONWEALTH OF PENNSYLVANIA                           : IN THE COURT OF COMMON PLEAS

                                                                : DAUPHIN COUNTY, PENNSYLVANIA



                                v.                               DOCKET NO. 6082 CR 2016

                                                                                   (63 MDA 2018)

                                                                 CRIMINAL MATTER

         MARIO C. BOLOGNA

                                       MEMORANDUM OPINION

               Presently before this Court is the Appeal filed in the above-captioned matter. This opinion

        is written pursuant to Pa.R.A.P. l 925(b).

                                             Procedural Background:

               A bench trial was held on September 6, 2017 folJowing which this Court found Mario C.

    Bologna ("Defendant") guilty of Count 1 - DUI general impairment and Count 2 - Careless

    Driving'. On October 17, 2017, Defendant was sentenced to pay costs, a fine of $300, and placed

    on a period of county probation for a term of six (6) months. Defendant was ordered to follow

    through on any recommendations that grew out of the CRN evaluation, perform 50 hours of

    community service, and comply with any and all conditions of a DUI sentence. Defendant's post-

    sentence motion was denied on December 13, 2017. A timely notice of appeal was filed on January

    2, 2018. In compliance with this Court's 1925(b) order, Defendant filed a 1925(b) Statement. The

    basis for this appeal has been expressed by the Defendant as follows:

               1. The trial court erred in denying Bologna's Omnibus Pre-Trial Motion because the
                  Commonwealth did not establish corpus delicti through independent evidence. The
                  Commonwea1th was only able to prove the corpus delicti through the defendant's
                  admission. Bologna's conviction cannot be based solely on his own admission, as the

    1
     75 Pa.C.S.A. §3802(a)(1) and 75 Pa.C.S.A. §3714, respectively. Appellant was found not guilty at Count 3 -
    Driving an Unregistered Vehicle. This Court took the matter under advisement and issued a ruling on September
    15, 2017.
                                                            1
,                  corpus delicti rule holds that "a criminal conviction may not be based on the extra-
                   judicial confession or admission of the defendant unless it is corroborated by
                   independent evidence establishing the corpus delicti." Commonwealth v. Ware, 329
                   A.2d 258, 274 (Pa. 1974).

               2. The trial court erred in finding that the conviction for DUI, general impairment, was
                  not against the weight of the evidence because the Commonwealth did not prove
                  beyond a reasonable doubt that Bologna was in actual physical control of the movement
                  of the pickup truck. Bologna was found asleep in the passenger seat of the pickup truck
                  and no one saw him drive the truck.

               3. The trial court erred in finding evidence as to DUI, general impairment, because the
                  Commonwealth did not present any evidence that Bologna was in actual physical
                  control of the pickup truck. 2

                                                 FACTUAL BACKGROUND

               The testimony at the bench trial revealed the foJJowing facts. Detective Ryan Gartland, of

    the Lower Swatara Township Police Department, at approximately 3:18 a.m. on September 2,

    2016, was driving on routine patrol when he encountered a white Chevy Avalanche truck stopped

    at a 90 degree angle across the roadway blocking his lane of travel. Transcript of Proceedings,

    Bench Trial, September 6, 2017, pages 17-18 (hereinafter "N.T. at_"). As Detective Gartland

    approached the vehicle, he realized that there was an occupant (later identified as the Defendant)

    slumped over in the passenger seat of the vehicle. N.T. at 19. The vehicle was in neutral, the motor

    was running with its headlights on. N.T. at 20-21. Detective Gartland approached the passenger

    side and began knocking on the door. N.T. at 21. After knocking more aggressively, the passenger

    finally responded and opened the door. N.T. at 22.

               When the Defendant woke up, his head appeared to be rolling and it appeared he was

    looking around trying to figure out his surroundings. N.T. at 22. The Defendant appeared to be

    disoriented and his eyes were bloodshot. Id. Detective Gartland asked for the Defendant's driver's

    license, registration and insurance information. N.T. at 23. The Defendant reached toward the sun

    visor on the driver's side of the vehicle and had trouble retrieving this information. Id. Detective


    2
        Appellant's 1925(b) Statement of Errors Complained ofon Appeal, filed January 19, 2018.
                                                              2
'       Gartland opened the door and immediately smelled a strong odor of an alcoholic beverage coming

    from Defendant's breath and noticed that he had very slurred speech. N.T. at 25. Defendant told

    the officer that he was the only one in the car, had a few drinks of vodka, and that he (the

    Defendant) drove there. Id. Detective Gartland testified that the Defendant's eye contact was

    sporadic and that he had to keep a hand on the Defendant so that he would not fall over. N.T. at

    26. The Detective was not comfortable having the Defendant walk around or do anything because

    he had to keep a hand on the Defendant to prevent him from falling over. As such, no field sobriety

    test was conducted. N.T. at 26. Defendant was placed under arrest and transported to the booking

    center. N.T. at 29. The Defendant did not submit to a blood test, was read the DL-26 form, and

    signed it. N.T. at 30-31.

              The Conunonwealth also introduced the video surveillance, through Christina Liephart, an

    asset protection coordinator for Turkey Hill, from the convenience store that shows the vehicle's

    back end in a parking lot and the rest of the vehicle blocking the lane of travel along White House

    Lane in Highspire, Pennsylvania. See generally N.T. at 5-9. The video shows the vehicle pulling

    into the parking lot at 1 :52 a.m. and drifting out into the road about 3:04 a.m. N.T. at 13-14.3

    Detective Gartland, who testified that he watched the entire video surveillance and that there was

    no activity from the time the vehicle pulls into the parking Jot until it begins to drift, testified that

    he did not see anyone exit or enter the vehicle nor did he see anyone walk in front of the headlights

    of the vehicle. N.T. at 14-15.

                                                         DISCUSSION

              1. Corpus delicti

              The Defendant contends that the trial court erred in denying his pre-trial motion because

        the Commonwealth did not establish corpus delicti through independent evidence. To simplify,


    3
     Portions of the video surveillance were played in court. For judicial economy, the whole video surveillance was
    not played.
                                                             3
,       the Defendant contends that the tria1 court erred in admitting testimony regarding his confession

        to driving. We disagree.

              The Pennsylvania Superior Court has established the following principles:

              The corpus delicti rule is a rule of evidence. [The Pennsylvania Superior Court's]
              standard of review on appeals challenging evidentiary ruling of the trial court is
              limited to a determination of whether the trial court abused its discretion. The
              corpus delicti rule places the burden on the prosecution to establish that a crime has
              actually occurred before a confession or admission of the accused connecting him
              to the crime can be admitted. The corpus delicti is literally the body of the crime;
              it consists of proof that a loss or injury has occurred as a result of the criminal
              conduct of someone. The criminal responsibility of the accused for the loss or
              injury is not a component of the rule. The historical purpose of the rule is to prevent
              a conviction based solely upon a confession or admission, where in fact no crime
              has been committed. The corpus delicti may be established by circumstantial
              evidence.

              Commonwealth v. Rivera, 828 A.2d 1094, 1103-04 (Pa. Super. 2003), appeal denied, 842

    A.2d 406 (Pa. 2004) (citation omitted). "Establishing the corpus delicti is a two-step process. The

    first is admission, which requires a showing by a preponderance of the evidence. The second is

    consideration by the fact-finder, which requires a showing of the corpus delicti beyond a

    reasonable doubt." Commonwealth v. Herb, 852 A.2d 356, 363 n.3 (Pa. Super. 2004) (citations

    omitted). "Under the corpus delicti rule, the Commonwealth was required to show, either through

    direct or circumstantial evidence, that Appellant drove or operated his vehicle while under the

    influence of alcohol." Commonwealth v. Rivera, 828 A.2d, 1094, 1 J 04 (Pa. Super. 2003) appeal

    denied, 577 Pa. 672, 842 A.2d 406 (2004 ).

              In the instant matter, the Commonwealth presented evidence at a suppression hearing held

    on June I, 2017 that a white truck was blocking the lane oftravel,4 Defendant was unconscious in

    the passenger seat of that vehicle, no one else was walking around or near the vehicle, the vehicle

    was registered to the Defendant, the keys were in the ignition and the car was in neutral, and the


    4
     Much of the same testimony presented at the Suppression Hearing was the same as the testimony presented at the
    Bench trial. Following the Suppression Hearing, pursuant to court order dated July 6, 2017, we found that the
    Commonwealth estasblished its burden of establishing corpus delicti.
                                                            4
Officer tried to knock several times on the passenger side window to wake the Defendant. When

the Defendant finally opened the door, the Officer noticed a strong odor of alcohol, rolling eyes,

.and-slurred--Speech.-At-this-p0int,the-Defendant--stated-that-he-0nly-had-a-fe-w-d:rink.s-and-that-he----

was the driver   of the vehicle.
        Likewise, this Court finds this case similar to Commonwealth v. Williams, 941 A.2d 14

(Pa. Super. 2008) (holding that although the Appellant was unconscious in the backseat of her

vehicle for an unknown amount of time, the Commonwealth established that the Appellant was in

"actual physical control" of the vehicle) and Commonwealth v. Kasunic, 620 A.2d 525 (Pa. Super.

l 993)(the Pennsylvania Superior Court concluded that ample evidence established the corpus

delicti of DUI where the defendant was found lying on the side of a roadway, next to his pick-up

truck, while highly intoxicated with no one else around). Here, Defendant was not legally parked

and, upon discovery by a police officer, the keys were in the ignition, the car was running in neutral

with its headlights on and the Defendant was apparently passed out in the passenger front seat.

Additionally, no one else was near the scene when and where the Defendant was found. Detective

Gartland testified that the Defendant smelled of alcohol and seemed highly intoxicated (to the

point that he was unable to administer field sobriety tests due to the concern of Defendant's safety).

The evidence is consistent with the fact that someone operated a motor vehicle while intoxicated.

Only after this evidence was presented did the Commonwealth offer Defendant's statement that

he had been drinking and driving. Thus, the Commonwealth established by a preponderance of the

evidence that a crime, drunk driving, occurred, and the admission of the confession was proper.

See also Rivera, supra at 1103-04; 75 Pa.C.S.A. §§ 3802(a)(l), (c).

       2. Weight of the evidence:

           In reviewing a weight claim, we are mindful of the following:

           The decision of whether to grant a new trial on the basis of a challenge to the
           weight of the evidence is necessarily committed to the sound discretion of the
           trial court due to the court's observation of the witnesses and the evidence. A
                                                  5
                          trial court should award a new trial on this ground only when the verdict is so
                          contrary to the evidence as to shock one's sense of justice. A motion alleging
                          the verdict was against the weight of the evidence should not be granted where
                          it merely identifies contradictory evidence presented by the Commonwealth
---------ancLthe-defendant.-[.Ihe-Super:ior_court�s]-re¥iew-on-appeaUsJimitecLto                                                   _
                          determining whether the trial court abused its discretion in denying the motion
  ... ··--··· ··----------for a new trial on"inis ground.                           - ·-----------·-·---· ··· ·- ·····-··--·-··•·.

                       Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations omitted). ''Not

               merely an error in judgment, an abuse of discretion occurs when the law is overridden or

               misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality,

               prejudice, bias, or ill-will, as shown by the evidence on record." Commonwealth v. Handfield,

               34 A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d 3, 6 (Pa. Super.

               2011) ). In order to prove a violation of this section, the Commonwealth must show: (I) that the

               defendant was the operator of a motor vehicle and (2) that while operating the vehicle, the

               defendant was under the influence of alcohol to such a degree as to render him or her incapable

               of safe driving. Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa. Super. 2000).

                       As previously noted, we found the Appellant guilty of DUI under Section 3802(a)(l) which

               provides:

                       (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.

                       Additionally, we note that "[Subsection 3802(a)(l) is an 'at the time of driving' offense,

               requiring that the Commonwealth prove the following elements: the accused was driving,

               operating, or in actual physical control of the movement of a vehicle during the time when he or

               she was rendered incapable of safely doing so due to the consumption of alcohol." Commonwealth

               v. Segida, 604 Pa. 103, 114-116, 985 A.2d 871, 879 (Pa. 2009). The Pennsylvania Supreme Court

               in Segida also set forth the following:

                                                                  6
                    Section 3802(a)(l), like its predecessor [statute], is a general provision
                    and provides no specific restraint upon the Commonwealth in the manner
                    in which it may prove that an accused operated a vehicle under the
        'nfluenclnrhrlcuhuI-to-a-degre-e-whidrrerrd·ered--himincapable-of-safi
--------driving-;--;-;--;-'Fhe-t-ypes-ofevidenee-that-t-he-Gommonwealth-may-pr-effer-in-
                                                                                       1 -------
        a subsection 3802(a)(l) prosecution include but are not limited to, the
                    following: the offender's actions and behavior, including manner of
                    driving and ability to pass field sobriety tests; demeanor, including toward
                    the investigating officer; physical appearance, particularly bloodshot eyes
                    and other physical signs of intoxication; odor of alcohol, and slurred
                    speech. Blood alcohol level may be added to this list, although it is not
                    necessary and the two hour time limit for measuring blood alcohol level
                    does not apply. Blood alcohol level is admissible in a subsection
                    3801(a)(l) case only insofar as it is relevant to and probative of the
                    accused's ability to drive safe]y at the time he or she was driving. The
                    weight to be assigned these various types of evidence presents a question
                    for the fact-finder, who may rely on his or her experience, common sense,
                    and/or expert testimony. Regardless of the type of evidence that the
                    Commonwealth proffers to support its case, the focus of subsection
                    3802(a)(l) remains on the inability of the individual to drive safely due to
                    consumption of alcohol-not on a particular blood aJcohol level.

                    Id at 115-116, 985 A.2d at 879 (cited by Teems at 145).


                 Additionally, we look to the Pennsylvania Superior Court's explanation of actual physical

          control in Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008):

                 The term "operate" requires evidence of actual physical control of the vehicle to be
                 determined based upon the totality of the circumstances. Williams, supra at 259.
                 "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." Id. (quoting Commonwealth v. Woodruff. 447
                 Pa.Super. 222, 668 A.2d 1158, 1161 (1995)). The Commonwealth can establish
                 that a defendant had "actual physical control" of a vehicle through wholly
                 circumstantial evidence. Id. See also Commonwealth v. Johnson, 833 A.2d 260
                 (Pa.Super.2003) (collecting cases standing for proposition that Commonwealth
                 may establish by totality of circumstances, defendant was driving, operating or in
                 actual physical control of motor vehicle). Furthermore, "a police officer may utilize
                 both his experience and personal observations to render an opinion as to whether a
                 person is intoxicated." Commonwealth v. Kelley, 438 Pa.Super. 289, 652 A.2d 378,
                                                           7
                     382 (1994) (citing Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125
                     (1993)).

                      Williams at 27.
________We..no_w_consider..theJotality_o[the_cir.cumstancesinJhis_matteu.s_foUo.ws.:_(l_)_Ilefend.....
                                                                                                 ant's..;                  _

              vefiicle was sitting outsiae of an esta6lisfimeriCUiat ooes not serve alcoholmotfi-r_e
                                                                                                 e _w-s-
                                                                                                      a on ----··-···-··-···-·-

              evidence that the Defendant consumed alcohol nearby; 2) the vehicle was blocking the lane of

              travel and was illegally parked (we note that the vehicle was in neutral); 3) the Defendant was

              sitting in the passenger seat slumped over the center console; 4) the engine of the vehicle was

              running and the vehicle's headlights were on; 5) the vehicle was registered to the Defendant; 6)

              the Detective had a difficult time awakening Defendant; 7) Defendant showed signs of visible

              intoxication, had a strong odor of an alcoholic beverage coming from his breath, his eyes were

              rolling, and had extremely slurred speech; 8) there was no one else around nor did the video

              surveillance establish that there was another driver; and 9) the Defendant admitted to drinking and

              driving. Additionally, we found the Detective's testimony to be credible. Thus, the totality of the

              circumstances including the location and position of the vehicle and the running engine, support

              an inference that Defendant had driven his vehicle while intoxicated into the parking lot of the

              Turkey Hill, and that Defendant was in actual control of a motor vehicle at the time of his arrest.

                     Because this was a non-jury trial, the verdict clearly does not shock our sense of justice.

              We have had the opportunity to hear and see the evidence presented, including the video

              surveillance and the credible testimony presented by the detective. Here, the Commonwealth

              established by circumstantial evidence that the defendant was the operator of the vehicle.


                     3. Sufficiency of the evidence:

                     Prior Pennsylvania courts have set forth the standard for challenging a sufficiency of the

              evidence claim as follows:

                         A challenge to the sufficiency of the evidence is a question of law, subject
                         to plenary review. When reviewing a sufficiency of the evidence claim,
                                                               8
         the appellate court must review all of the evidence and all reasonable
         inferences drawn therefrom in the light most favorable to the
         Commonwealth, as the verdict winner. Evidence will be deemed to
         support the verdict when it establishes each element of the crime charged
----------nd-the...commission-thei:eof-by-the-accused,bqond-a..:r:easonable-doulolh-----------
            .
         The Commonwealth need not preclude every possibility of innocence or
         establish the defendant's guilt to a mathematical certainty. Finally, the
         trier 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. Teems, 74 A.3d 142, 144-45 (Pa. Super. 2013) (citing
                      Commonwealth v. Toland, 995 A.2d 1242, 1242 (Pa. Super.
                      2010))(citations omitted).


                  Based on the evidence as summarized above, and incorporating our reasoning under the

           weight of the evidence claim, there was more than sufficient evidence to establish the Defendant

           guilty as to DUI, general impairment.

                  For the foregoing reasons, it is believed that Appellant's claims of error are without merit.




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           Distribution:
           Dauphin County District Attorney's Office- Ryan Lysaght, Esquire (Appeal)
           Justin J. McShane, Esquire- 3601 Vartan Way, znd Floor, Harrisburg, PA 17110
           Court Administration - Criminal
           Pennsylvania Superior Court, Prothonotary
           Dauphin County Clerk of Courts r-
           FILE COPY· Judge Richard A. Lewis


                                                            9
