J-S56036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

HARRY EUGENE HELMAN, JR.,

                            Appellant                    No. 345 MDA 2015


            Appeal from the Judgment of Sentence January 21, 2015
                in the Court of Common Pleas of Franklin County
               Criminal Division at No.: CP-28-CR-0001008-2014


BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED OCTOBER 22, 2015

        Appellant, Harry Eugene Helman, Jr., appeals from the judgment of

sentence imposed following his bench conviction of driving under the

influence     (DUI)-general       impairment,   75    Pa.C.S.A.   §   3802(a)(1).

Specifically, he challenges the sufficiency of the evidence. We affirm.

        We take the following facts from the trial court’s March 26, 2015

opinion and our independent review of the record. On the evening of April

11, 2014, Corporal Lloyd Perkins of the Washington Township Police

Department responded to a call from a mobile home park resident about a

single vehicle crash at 12222 Polktown Road, in the area of Lot twenty-five.

He found an unattended truck stuck in the embankment, just off the paved
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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road that runs through the mobile home park.        After determining that the

truck belonged to Appellant, Corporal Perkins went to his home at lot forty-

one, but there was no answer at the door.        (See N.T. Trial, 10/23/14, at

19). Eventually, Corporal Perkins found Appellant hiding nearby in a briar

patch down an embankment between lots twenty-five and twenty-six. (See

id. at 19-20). When the officer asked him what happened with the truck, he

responded, “I don’t know . . . I lost control.” (Id. at 20). Appellant later

told Corporal Perkins that he actually had not been driving, but he would not

provide the name of the alleged driver, or complete a written statement.

(See id. at 20, 31).1

       The Commonwealth filed an information on June 27, 2014, charging

Appellant with DUI-general impairment. The one-day non-jury trial occurred

on October 23, 2014.

       At trial, Corporal Perkins and Appellant’s neighbor, Travis Hutchinson,

testified on behalf of the Commonwealth. Appellant and his nephew, Nathan

Stroman, testified on behalf of Appellant.


____________________________________________


1
  Corporal Perkins arrested Appellant for DUI on the bases that his eyes
were glassy, his breath smelled of alcohol, he admitted he had been drinking
alcohol, and he failed the field sobriety tests. (See N.T. Trial, 10/23/14, at
21-23, 30). When Appellant was transported to Waynesboro Hospital, he
refused to submit to chemical testing or sign a form that he had been
informed about the consequences of failing to do so. (See id. at 30-31).
Appellant does not allege that he was not drinking on the night in question.
(See Appellant’s Brief, at 10-16).



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       Mr. Hutchinson testified that, on the night in question, he saw a truck

hanging from a hill near his house in the mobile home park. (See id. at 5-

6). The truck’s tail lights were on, the wheels were spinning, and the engine

was revving. (See id. at 7). When Appellant got out of the driver’s seat

and asked for assistance, Mr. Hutchinson noticed that he smelled of alcohol.

(See id. at 8-10).    He did not see anyone other than Appellant and their

neighbor, Jen Bair, in the area of the truck.     (See id. at 7).   On cross-

examination, Mr. Hutchinson confirmed that he saw the truck on the grassy

hill with spinning tires, but did not see how it came to be off of the

pavement. (See id. at 12).

       Mr. Stroman and Appellant both testified that, on the subject night,

Mr. Stroman offered to drive Appellant home from his sister’s house in St.

Thomas, Pennsylvania, because he had been drinking a lot. (See id. at 40-

41, 52). They stated that the truck ended up on the embankment when Mr.

Stroman turned quickly. (See id. at 41, 42, 44, 56). Mr. Stroman then left

his uncle at the truck, and got a ride home from a friend. (See id. at 44-

45).   Appellant stated that he hid in the weeds when he saw Corporal

Perkins arrive because he was afraid of being arrested for public intoxication.

(See id. at 53, 55). Although Appellant mentioned his nephew at the police

station, he did not give the police Mr. Stroman’s name as the person who

had been driving the truck when the accident occurred.       (See id. at 55).

Also, Mr. Stroman did not go to the police or the District Attorney, because


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he was concerned he would get in trouble for driving without a license. (See

id. at 45-46).

      In addition to testifying about the night in question, Corporal Perkins

stated that, when he returned to the scene of the incident the next day to

complete his accident investigation, he noted striation marks on the

pavement that appeared to be the result of a rapid right hand turn and

vehicle acceleration. (See id. at 25, 27). Photographs that he took of the

scene showed numerous residences and several vehicles parked adjacent to

the road. (See Commonwealth Exhibits, 8, 11, 12).

      At the conclusion of trial, the court found the testimony of Appellant

and Mr. Stroman incredible, and convicted Appellant of DUI-general

impairment. On January 21, 2015, the court sentenced Appellant to not less

than thirty days nor more than six months’ incarceration.          It granted

Appellant bail pending appeal.

      Appellant filed a timely notice of appeal on February 20, 2015.      On

February 23, 2015, the court ordered him to file a Rule 1925(b) statement,

which he did on March 9, 2015. See Pa.R.A.P. 1925(b). The court filed an

opinion on March 26, 2015. See Pa.R.A.P. 1925(a).

      Appellant raises one issue for this Court’s review:

      Was the [t]rial [c]ourt’s verdict supported by sufficient evidence
      to convict the Appellant of Driving Under the Influence where the
      only witness who saw Appellant behind the wheel of a vehicle
      was a lay witness who [saw] Appellant trying to get the vehicle
      unstuck from an area that was not either a “highway or
      trafficway” as those terms are defined in the vehicle code[?]

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(Appellant’s Brief, at 7).    Specifically, Appellant maintains “there was

insufficient evidence that he ‘drove, operated, or was actual physical control

of the movement of a motor vehicle’ on either a highway or trafficway.” (Id.

at 10; see id. at 15-16). Appellant’s issue is waived and lacks merit.

      “It is well settled that the argument portion of an appellate brief must

be developed with pertinent discussion of the issue, which includes citations

to relevant authority.   Pa.R.A.P. 2119(a).”   Commonwealth v. Knox, 50

A.3d 732, 748 (Pa. Super. 2012), appeal denied, 69 A.3d 601 (Pa. 2013)

(case citation omitted). Here, although Appellant provides citations to the

Vehicle Code and to boilerplate law for our standard of review, he only

provides one citation, Commonwealth v. McFadden, 547 A.2d 774 (Pa.

Super. 1988), in support of his argument that the evidence was insufficient

to support his conviction. (See Appellant’s Brief, at 11-16).

      However, “McFadden is a plurality decision and, therefore, is not

binding.” Commonwealth v. Zabierowsky, 730 A.2d 987, 991 (Pa. Super.

1999) (citation omitted); see also Commonwealth v. Wilson, 553 A.2d

452, 454 (Pa. Super. 1989), appeal denied, 562 A.2d 826 (Pa. 1989)

(“McFadden is a plurality opinion with one judge concurring in the result

and one judge dissenting. It’s interpretation of [75 Pa.C.S.A.] § 3101 has

no precedential value in this Commonwealth.”).      Therefore, Appellant has

failed to provide pertinent argument, and this issue is waived. See Knox,

supra at 748. Moreover, Appellant’s claim would not merit relief.

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      Our standard of review of sufficiency of the evidence challenges is

well-settled:

                   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.

            Further, in viewing the evidence in the light most favorable
      to the Commonwealth as the verdict winner, the court must give
      the prosecution the benefit of all reasonable inferences to be
      drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014)

(citations omitted).

      The trial court convicted Appellant of DUI-general impairment.       The

Vehicle Code provides, in pertinent part, that: “An individual may not drive,

operate or be in actual physical control of the movement of a vehicle after

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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). The prohibition

applies “upon highways and trafficways throughout this Commonwealth.” 75

Pa.C.S.A. § 3101(b).      A highway is:      “The entire width between the

boundary lines of every way publicly maintained when any part thereof is

open to the use of the public for purposes of vehicular travel. . . .”       75

Pa.C.S.A. § 102.    A trafficway is defined as: “The entire width between

property lines or other boundary lines of every way or place of which any

part is open to the public for purposes of vehicular travel as a matter of right

or custom.” Id.

      In this case, Appellant argues that the evidence was insufficient to

support his conviction because, “[e]ven viewing [it in] the light most

favorable to the Commonwealth, there was not one witness who testified

that they saw Appellant drive on either a highway or trafficway.”

(Appellant’s Brief, at 15). This argument would lack merit.

      We first observe that “the suspect location of an automobile supports

an inference that it was driven[.]” Commonwealth v. Woodruff, 668 A.2d

1158, 1161 (Pa. Super. 1995) (citation omitted).        Therefore, Appellant’s

allegation that the Commonwealth failed to establish that he “‘drove,

operated, or was in actual physical control of the movement of a motor

vehicle’ on either a highway or trafficway[,”] because his truck was only


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seen “off the road, down an embankment[,]” lacks merit. (Appellant’s Brief,

at 10); see also Woodruff, supra at 1161.

      Second, we find any attempted argument that the Commonwealth

failed to establish the elements of DUI because the trailer park road is not a

traifficway or roadway to be contradicted by relevant Pennsylvania caselaw.

(See id. at 10-16).

      For example, in Commonwealth v. Cameron, 668 A.2d 1163 (Pa.

Super. 1995), this Court concluded that a person on a private parking lot

could be liable for DUI because:

      [T]enants, employees, and others who have the advantage of a
      restricted parking facility still deserve and expect to be protected
      from incidents involving serious traffic offenses. Thus, the public
      use component of Section 102 can be satisfied even where
      access to a parking lot is restricted, but where there are a
      sufficient number of users[.]

Cameron, supra at 1164; see also Zabierowsky, supra at 991 (finding

that public parking garage allowing parking through taking of ticket upon

entrance and payment of fee upon exit was trafficway, for purposes of DUI

statute); Commonwealth v. Karenbauer, 574 A.2d 716, 718 (Pa. Super.

1990) (finding alleyway that accessed three residences             and led to

government building was highway or trafficway for DUI purposes); Wilson,

supra at 454 (parking lot of club was trafficway for purposes of DUI

statute); Commonwealth v. Baughman, 516 A.2d 390, 391 (Pa. Super.

1986), appeal denied, 527 A.2d 534 (Pa. 1987) (concluding dirt track with

no signs or barriers prohibiting access was trafficway).

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      Here, our review of the record does not reveal that the trailer park

road was restricted in any way. Also, testimony established that there were

several residential lots, there were other trailer park residents identified, and

Corporal Perkins found Appellant, who lived in lot forty-one, hiding in a briar

patch between lots twenty-five and twenty-six, thus further evidencing the

existence of several residences. (See N.T. Trial, 10/23/14, at 17, 19-20).

Indeed, photographs of the crash scene show numerous homes and several

vehicles parked adjacent to the trailer park road.      (See Commonwealth’s

Exhibits 8, 11, 12).      Based on the foregoing, we conclude that the

Commonwealth established that the trailer park road was a trafficway for

purposes of section 102.      See Zabierowsky, supra at 991; Cameron,

supra at 1164; Karenbauer, supra at 718; Wilson, supra at 454;

Baughman, supra at 391.

      Accordingly, viewing the evidence in the light most favorable to the

Commonwealth, we conclude that it was sufficient to support a conviction of

DUI-general impairment.     See Harden, supra at 111.         Appellant’s issue,

even if not waived, would not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/22/2015

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