J-A01027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    MONICA PAOLINI,

                             Appellant                No. 3068 EDA 2016


           Appeal from the Judgment of Sentence September 9, 2016
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0004991-2016


BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 22, 2018

        Appellant, Monica Paolini, appeals from the judgment of sentence

imposed on September 9, 2016, following her non-jury trial conviction of

driving under the influence (DUI).1 Specifically, she claims that the evidence

was insufficient to support the trial court’s verdict. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s June 23, 2017 opinion. On

May 20, 2016, the Philadelphia Municipal Court convicted Appellant of DUI and

sentenced her to six months of probation. Appellant appealed to the Court of

Common Pleas, which conducted a non-jury trial on September 9, 2016. At


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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(a)(1).
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trial, the Commonwealth presented the testimony of the arresting officers,

Philadelphia Police Officers Vincent Labrice and Cindy Yue.

      On January 20, 2016, at 12:45 a.m., Officers Labrice and Yue

approached Appellant’s vehicle, which was parked with the headlights on and

the motor running in the parking lot of a closed CVS store located across the

street from the Brickhouse Tavern. (See N.T. Trial, 9/09/16, at 7-8). When

they tried to speak with Appellant, she was distracted looking for her cell

phone and not paying attention to the officers. (See id. at 8). Officers Labrice

and Yue explained that there was a strong odor of alcohol coming out of the

vehicle, and that Appellant was wobbling and unable to stand when she got

out of the car. (See id. at 8-9, 14, 16-17). Appellant admitted to the officers

that she had consumed a few drinks at the Brickhouse Tavern across the

street.   (See id. at 9, 15).   Both officers testified that they believed that

Appellant was under the influence of alcohol. (See id. at 10, 15). Officer Yue

testified that she did not believe that Appellant could safely operate a motor

vehicle. (See id. at 15). On cross-examination, Officers Labrice and Yue both

conceded that they has no training in DUIs, conducted no field sobriety tests,

and that they never saw Appellant’s car move. (See id. at 11, 16).

      The trial court found the testimony of Officers Labrice and Yue to be

credible. (See id. at 23). It concluded that

      the Commonwealth has sustained its burden with regard to [§
      3802(a)(1)], DUI, general impairment. The facts are clear when
      the police officers came to the scene, the car was already running.
      [Appellant] was—appeared to be incoherent, unable to stand,
      smelled of alcohol, was clearly observed by the officers. The

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       officers in their joint assessment felt that [Appellant] was unable
       to—incapable of safely driving the vehicle.

(Id.). The trial court then found Appellant guilty of DUI and sentenced her to

six months of probation. (See id. at 24-25). This timely appeal followed.2

       Appellant presents one question on appeal: “Whether the [trial court]

committed an error of law when it found Appellant was in actual physical

control of a vehicle, and whether the evidence was sufficient to find Appellant

guilty of violating 75 Pa.C[.]S[.]A[.] § 3802(a)(1)[?]” (Appellant’s Brief, at

6).

       Appellant challenges the sufficiency of the evidence to support her

conviction. (See id. at 13-17). Specifically, she claims that Commonwealth

failed to prove that she was in actual physical control of the vehicle. (See

id.). We disagree.3

             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, 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 sufficient to support the verdict when it
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2 Pursuant to the trial court’s order, Appellant filed her concise statement of
errors complained of on appeal on October 13, 2016. The trial court entered
its opinion on June 23, 2017. See Pa.R.A.P. 1925.

3 In the argument portion of her brief, Appellant claims that the evidence was
insufficient because there was no evidence of alcohol consumption that would
have rendered her unfit to drive. (See Appellant’s Brief, at 17-18). Appellant
did not include this issue in her statement of questions involved, nor is it fairly
suggested thereby, thus it is waived. See Pa.R.A.P. 2116(a). Moreover, even
if she had included it in her statement of questions, she did not develop this
argument supported by citation to pertinent legal authority, thus it would be
waived for that reason as well. See Pa.R.A.P. 2119(a).

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     establishes each material element of the crime charged and the
     commission thereof by the accused, beyond a reasonable doubt.
     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. Williams, 871 A.2d 254, 259 (Pa. Super. 2005) (citations

and quotation marks omitted).

     Appellant was convicted of violating section 3802(a)(1) of the vehicle

code, which provides:

     (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).

     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. A determination of actual physical control of a
     vehicle is based upon the totality of the circumstances. The
     Commonwealth can establish through wholly circumstantial
     evidence that a defendant was driving, operating or in actual
     physical control of a motor vehicle.

Williams, supra at 259 (citations and quotation marks omitted).

     In Williams, supra, this Court concluded that the Commonwealth

proved that the appellant had actual physical control of his vehicle where

police officers found him parked outside a restaurant, asleep in the driver’s

seat with his head and hands resting on the wheel, with the engine running,




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the headlights on, and the transmission in the park position. See id. at 258-

59.

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

appeal denied, 29 A.3d 797 (Pa. 2011), this Court similarly found that the

appellant had actual physical control of the vehicle.         In Toland, the

Commonwealth proved that the appellant was asleep in the driver’s seat of

the vehicle with the motor running and headlights on, and there was an

unopened six-pack of beer on the floor behind the driver’s seat.            The

appellant’s vehicle was parked on a public street in front of a store. The court

concluded that although it was unclear where the appellant had been drinking,

because he was not sitting in the parking lot of a bar, there was a reasonable

inference based on circumstantial evidence that the appellant drove to that

location. See Toland, supra at 1246-47.

      Here, the Commonwealth introduced evidence that Appellant was in a

parked car, with the motor running and headlights on, outside of a closed CVS

drugstore at 12:45 a.m. When they approached Appellant, who was sitting in

her vehicle, she was intoxicated to the extent that she could neither focus on

their questions to her, nor stand stably upon exiting the car.        Appellant

admitted to the officers that she had been drinking alcohol at the Brickhouse

Tavern, located across the street from the CVS. (See N.T. Trial, 7-17).

      Therefore, we conclude that viewing the evidence and all reasonable

inferences therefrom in the light most favorable to the Commonwealth as

verdict winner, there was sufficient evidence to prove that Appellant had

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actual physical control of her vehicle after having consumed enough alcohol

to render her incapable of safely doing so. See Williams, supra at 259. It

is reasonable to infer, based on the circumstantial evidence, that Appellant

was parked outside of a closed CVS store, and she drove her vehicle to the

CVS after drinking alcohol at the Brickhouse Tavern.4 See Toland, supra at

1246-47.

       Accordingly,    we    conclude     that   the   evidence   presented   by   the

Commonwealth was sufficient to prove that Appellant was guilty of DUI.

Appellant’s challenge to the sufficiency of the evidence does not merit relief.

       Judgment of sentence affirmed.




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4 We find Appellant’s reliance on Commonwealth v. Byers, 650 A.2d 468
(Pa. Super. 1994), for the argument that she did not have actual physical
control of the vehicle, and that the Commonwealth failed to show that she
posed a danger to public safety, to be misplaced. (See Appellant’s Brief, at
15-17). Our Supreme Court in Commonwealth v. Wolen, 685 A.2d 1384
(Pa. 1996) (plurality), criticized the Byers approach. Specifically the Wolen
Court observed that “a person’s threat to public safety is not a relevant
consideration under the drunk driving statutes.” Wolen, supra at 1386 n.4;
see also Toland, supra at 1246-47 (recognizing that Wolen called approach
in Byers into question, and concluding that, at any rate, Byers was
distinguishable where appellant was not parked in front of bar, but rather
parked in front of store).


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J-A01027-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/18




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