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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

KENNETH O. PETERS

                            Appellant                    No. 1287 WDA 2014


              Appeal from the Judgment of Sentence July 11, 2014
                In the Court of Common Pleas of Warren County
              Criminal Division at No(s): CP-62-CR-0000514-2012
                            CP-62-CR-0000585-2012


BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 04, 2015

        Kenneth O. Peters appeals from the judgment of sentence imposed by

the Court of Common Pleas of Warren County following his convictions for

several offenses arising out of a motor vehicle accident and the subsequent

discovery by police of Peters in control of a vehicle while intoxicated. After

careful review, we affirm.

        On September 28, 2012, at approximately 10:00 p.m., Justin Justice

was driving his vehicle in Glade Township, Warren County, with his

passenger, T.J. Danielson (T.J.).         As they went around a corner, at thirty

miles per hour, a dark-colored Ford pickup truck hit the side of the vehicle

behind the driver’s side headlight, and continued along the driver’s side of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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the car up to the taillight.   The truck drove off without stopping.      When

Trooper Gregory Murphy arrived on the scene, he found a piece of a red

taillight, with distinctive red duct tape, along the side of the road and a foot-

long piece of plastic that appeared to be part of the top of a pickup truck

bumper. Justice’s vehicle was taken to an impound lot.

      That evening, T.J. told his brother, C.D. Danielson (C.D.), about the

accident.   At approximately 12:30 a.m. on September 29, 2012, Justice

received a phone call from C.D. telling him that he saw a dark colored Ford

pickup that matched the description of the one involved in the accident,

parked partially in the road near 5th Avenue Extension and Jackson Avenue

Extension. Someone was sleeping on the bench seat in the cab of the truck

with his head toward the passenger door.

      C.D. left the scene, picked up Justice and T.J. and drove them to the

spot where he found the truck. When Justice saw the damage on the truck,

he called the police.

      When Officer Nicholas Bryan of the Warren City Police Department

arrived at approximately 1:30 a.m., he saw that the lights and dome light of

the truck were on, and that the engine was running. He looked inside and

saw Peters “lying on his side in the area of the front seat of the truck, with

his head towards the passenger’s seat, and within reach of the controls of

the pickup truck.” Trial Court Opinion, 10/1/14, at 4. When Peters failed to

respond to Officer Bryan knocking on the window, the officer opened the

door, noticed the smell of alcohol, and woke Peters.       Peters did not know

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where he was or how he got there. Office Bryan directed Peters to turn off

the engine and removed the keys.

        Trooper Andrew Goss arrived on the scene, and recognized signs that

Peters was intoxicated.          During the course of their interaction, he noticed

that Peters had a can of beer stuffed into his pant leg and another in his

sock. He also determined that Peters had defecated on himself. The trooper

administered field sobriety tests, which Peters failed, and at 1:50 a.m. the

trooper placed Peters in his police vehicle to transport him to Warren

General    Hospital    for   a    blood   draw.    The   blood   draw   occurred   at

approximately 2:39 a.m., and revealed that Peters’ blood alcohol content

was between .14 and .17 percent

        Police took Peters’ truck to the same impound lot as Justice’s vehicle.

There, “Trooper Murphy was able to match the pieces of the vehicle left [at]

the scene of the hit and run the previous night with the damage he observed

on [Peters’] vehicle.” Id. at 5.

        On May 12, 2014, at the conclusion of a one-day trial, a jury convicted

Peters of accident with damage to attended vehicle/property. 1            The court

then found Peters guilty of violating statutes regarding driving on roadways

laned for traffic,2 driving a vehicle at safe speed,3 and immediate notice of
____________________________________________


1
    75 Pa.C.S. § 3743(a).
2
    75 Pa.C.S. § 3309(1)(a).




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accident to police department.4 The court also found him guilty of careless

driving,5 driving under the influence of alcohol high rate BAC,6 and driving

under the influence of alcohol general impairment.7

        On July 11, 2014, the court sentenced Peters to five days to six

months in the Warren County Prison for DUI, with credit for time served and

immediate eligibility for parole.        On the count of accident with damage to

attended vehicle/property, the court imposed a consecutive sentence of one

year’s probation. The court also suspended Peters’ operating privileges for

eighteen months and imposed fines and mandatory surcharges for the

summary offenses.

        Peters filed a notice of appeal and in response to an order from the

trial court, he filed a statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b) on August 15, 2014.           On October 1, 2014, the trial

court filed its Rule 1925(a) opinion.

        This timely appeal followed in which Peters raises the following issues

for our review:

                       _______________________
(Footnote Continued)
3
    75 Pa.C.S. § 3361.
4
    75 Pa.C.S. § 746(a)(2).
5
    75 Pa.C.S. § 3714(a).
6
    75 Pa.C.S. § 3802(b).
7
    75 Pa.C.S. § 3802(a)(1),



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      1. Is the evidence sufficient to prove beyond a reasonable doubt
         that [Peters] was the driver of his vehicle at the time of the
         motor vehicle accident giving rise to the charges under
         Warren County Docket No, 585 of 2012?

      2. Is the evidence sufficient to prove beyond a reasonable doubt
         that [Peters] drove, operated, or was in actual physical
         control of the movement of his truck on the occasion giving
         rise to the DUI charges?

      3. Were the cases improperly consolidated as the facts giving
         rise to the case were several hours apart in time and there is
         insufficient evidence between the two cases?

Appellant’s Brief, at 9.

      Where an appellant challenges the sufficiency of the evidence, this

Court “must determine whether the evidence and all reasonable inferences

deducible therefrom, when viewed in the light most favorable to the verdict-

winner . . . are sufficient to establish all elements of the crime charged

beyond a reasonable doubt.” Commonwealth v. Rakowski, 987 A.2d

1215, 1217 (Pa. Super. 2010) (quoting Commonwealth v. Parker, 957

A.2d 311, 317 (Pa. Super. 2008) (citations omitted)).           Further, “the

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence.” Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)

(citations omitted).       “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.” Id. at 26-27.

      Peters argues that because no one testified that they saw him driving

at the time of the accident, there was insufficient evidence that he



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committed any offenses arising out of the accident. He relies primarily on

the fact that at trial, both Peters and his sister testified that on the night in

question their stepfather, who died prior to trial, drove the truck. However,

Trooper Goss testified that Peters volunteered that “nobody had driven his

vehicle, but him.” N.T. Trial, 5/12/14, at 118.

      Justice testified that a dark colored truck crossed into his lane of traffic

striking his Honda Civic on the driver’s side and rendering the vehicle

inoperable. The truck drove away without the driver stopping to exchange

information with Justice. Trooper Murphy later testified that when he arrived

at the accident scene he recovered a piece of a rear tail light with red duct

tape on it and a section of a rear bumper cover. The next day he matched

those pieces up to missing portions of Peters’ vehicle.

      Officer Bryan testified that when he opened the cab of Peter’s truck,

there was “a moderate to strong odor of alcohol within the vehicle and when

[Peters] was speaking with me. I also inquired if he had been drinking that

night. And, he said, not for a while.” Id. at 48. Trooper Goss testified that

when he arrived on the scene, Peters “was definitely under the influence of

alcohol at that point.” Id. at 99.

      John Graves, the laboratory manager at Warren General Hospital

testified that the blood sample drawn from Peters revealed a BAC between

.14 and .17 percent.

      Viewed in the light most favorable to the Commonwealth as verdict

winner, Rakowski, supra, the evidence was sufficient for the finder of fact

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to conclude that Peters, while intoxicated, drove his truck into the opposing

lane of traffic, struck Justice’s vehicle causing significant damage, and fled

the scene.      The fact that the Commonwealth’s case relied heavily on

circumstantial evidence does not compromise the integrity of the verdicts

reached by the jury and the trial court. Abed, supra. The testimony cited

above, which the finders of fact credited, was sufficient to establish that

Peters committed the offenses that arose out of the motor vehicle accident.

      Peters next argues that the Commonwealth failed to present sufficient

evidence to support his conviction for driving under the influence.

      Section 3802 of the Motor Vehicle Law provides, in relevant part:

      § 3802.      Driving under the 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.
                                        ...

      (b)    High 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 at least 0.10% but less than 0.16% 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)(1),(b).




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      Peters argues that even if he was the driver when the accident

occurred, the Commonwealth did not prove that he was under the influence

of alcohol at that time nor that he was in actual physical control of the truck

when the police arrived. Appellant’s Brief, at 12-13.

      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 (Pa. Super. 2003).                      “A

determination of actual physical control of a vehicle is based upon the

totality of the circumstances.” Commonwealth v. Williams, 871 A.2d 254,

259 (Pa. Super. 2005) (citation omitted).

      In Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), this

Court held that the Commonwealth presented sufficient evidence to establish

actual physical control by the appellant of a vehicle “which appeared to be

stationary in front of . . . a . . . store,” id. at 1244, with the engine running

and the headlights illuminated while the defendant was sleeping in the

driver’s seat. The appellant had a cold, unopened six-pack of beer on the

floor behind the driver’s seat, and the store he was in front of did not sell

alcoholic beverages.   This Court held that a reasonable inference could be

made that the appellant drove to the location.

      Although Peters does not address Toland, he refers to two other cases

which have similar facts, Commonwealth v. Woodruff, 668 A.2d 1158

(Pa. Super. 1995) (defendant sleeping while slumped over steering wheel as

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car running and lights on) and Commonwealth v. Crum, 523 A.2d 799 (Pa.

Super. 1987) (defendant sleeping behind steering wheel in running vehicle

on side of road). Peters distinguishes these cases from the instant matter

because rather than slumping over the steering wheel, he tipped over

sideways onto the bench seat of his truck.        We find this difference to be

immaterial, and agree with the trial court that the Commonwealth proved

beyond a reasonable doubt that Peters was in actual physical control of the

vehicle while intoxicated.

      Peters next asserts that the court by consolidating the two cases for

trial. Pa.R.Crim.P. 582 provides in relevant part:

      Rule 582.      Joinder   –   Trial   of   Separate   Indictments   or
      Informations

      (A)   Standards

      (1)   Offenses charged in separate indictments or informations
            may be tried together if:

         (a)   the evidence of each of the offenses would be
               admissible in a separate trial for the other and is
               capable of separation by the jury so there is no
               danger of confusion; or

         (b)   the offenses charged are based on the same act or
               transaction.

Pa.R.Crim.P. 582(A)(1)(a-b).

      Because the record reflects that Peters failed to raise a timely

objection to the consolidation of the cases, we agree with the trial court that

the issue is waived and cannot be addressed for the first time on appeal.




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See Pa.R.A.P. 302(a) (“Issues not raise in the lower court are waived and

cannot be raised on appeal.”)

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2015




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