J-A27004-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

TERRENCE SCOTT JENKINS,

                         Appellant                  No. 1727 WDA 2014


        Appeal from the Judgment of Sentence September 25, 2014
           In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0006513-2014

BEFORE: BOWES, OLSON, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                       FILED NOVEMBER 20, 2015

      Terrence Jenkins appeals from the judgment of sentence of four days

incarceration in the DUI Alternative to Jail program and concurrent six

months probation that the trial court imposed after it found him guilty of one

count each of driving under the influence (“DUI”) (general impairment) and

DUI (highest rate). We affirm.

      The trial court summarized the salient facts as follows:

             Officer Bryan Crabb, a police officer from Mount Lebanon,
      was on duty the morning of March 7, 2014. Officer Crabb is a
      police officer with four (4) years experience who received
      training in Standardized Field Sobriety Testing and is familiar
      with drunk driving arrests. On March 7, 2014, Officer Crabb
      came into contact with a black Nissan Rogue that was stopped in
      front of 466 Duquesne Drive in Mount Lebanon. When Officer
      Crabb first saw the vehicle, it was running with the headlights
      off. Despite the weather being clear and dry, the vehicle's
      windshield wipers were activated. In addition, the vehicle was
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      parked facing the wrong direction such that the driver's door was
      adjacent to the curb and the parking lights were activated.

            Officer Crabb noticed that an individual, later identified as
      [Appellant], was sleeping behind the wheel of the vehicle.
      Officer Crabb approached the vehicle and found the vehicle to be
      in neutral. It took between ten (10) and fifteen (15) minutes to
      wake up [Appellant]. After waking [Appellant], Officer Crabb
      directed him to put the car into park, which he did. Officer
      Crabb noticed that [Appellant]’s speech was slurred, he had
      bloodshot and glassy eyes, and there was an odor of alcoholic
      beverages emanating from the vehicle and [Appellant]’s person.
      [Appellant] was unable to complete the field sobriety tests and
      stated "I probably drank too much" and was unable to identify
      where he was before Officer Crabb found him in the car.
      [Appellant] then staggered, but not quite stumbled, and stated
      "take me to jail."

            [Appellant] was transferred to St. Clair Hospital for a blood
      draw. Shortly thereafter, [Appellant] was released to a friend.
      The results of the blood draw were stipulated as being 0.213%.

Trial Court Opinion, 12/2/14, at 2-3.

      On September 25, 2014, the matter proceeded to a non-jury trial,

where Appellant was found guilty of both DUI charges. He was subsequently

sentenced on that same day to four days incarceration in the DUI Alternative

to Jail program and six months probation to be served concurrently.

Concomitant with his notice of appeal, Appellant filed a motion for stay of

sentence pending review, which was granted on November 3, 2014.             The

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal. He complied, and the trial court issued its 1925(a)

opinion. This matter is now ready for our review.




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      Appellant raises one issue, which relates to both DUI counts: “Whether

the Commonwealth proved beyond a reasonable doubt that the Appellant

was in actual physical control of a motor vehicle when there was no evidence

presented that demonstrated that the vehicle was in motion or that the

Appellant had otherwise operated the vehicle on a roadway within the

Commonwealth?” Appellant’s brief at 4.

      Appellant thus presents a sufficiency challenge, alleging specifically

that the trial court had insufficient evidence to find that he was in actual

physical control of the vehicle for the purposes of the relevant DUI statutes.

He argues that he “only entered the vehicle to charge his phone” and that,

because he did not move or attempt to move the vehicle prior to being

awakened by Officer Crabb, Appellant could not have been in actual physical

control of the vehicle as a matter of law.      Id. at 13-14.    Accordingly, he

asserts that the Commonwealth did not satisfy the burden of proof

necessary to convict him.

      In response, the Commonwealth argues that the evidence it presented

at Appellant’s bench trial is sufficient to sustain his convictions. Specifically,

the Commonwealth presented Officer Crabb, a witness deemed credible by

the trial court, who testified that he approached Appellant asleep in a

running vehicle, which was stopped in neutral while facing the opposite

direction on the two-lane road with engaged brake lights, activated

windshield wipers, and extinguished headlights. As the Commonwealth was

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not required to prove that Appellant had actually moved the car or was

moving at the time he was observed, it contends that the evidence it

presented, even if circumstantial, was sufficient to prove that Appellant was

in actual physical control of the vehicle as required by the statutes.        We

agree with the Commonwealth.

     This Court’s standard of review in sufficiency matters is well settled:

     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 to support the verdict when it
     establishes each 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. Levy, 83 A.3d 457, 461 (Pa.Super. 2013) (citations

omitted).

     Herein,   we   examine    Appellant’s   claim   as   it   relates   to   this

Commonwealth’s DUI statutes.        Appellant’s convictions arise from two

separate provisions, reproduced in relevant part:

     (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



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             or being in actual physical control of the movement of the
             vehicle.

      ....

      (c) Highest 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 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.

75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(c).

      At issue is whether Appellant maintained “actual physical control of the

movement of a vehicle” for the purpose of both provisions. “The concept of

‘actual physical control’ involves the control of the movements of either the

machinery of a motor vehicle or of the management of the vehicle itself.”

Commonwealth v. James, 863 A.2d 1179, 1184 (Pa.Super. 2004) (en

banc) (citation omitted). We have been clear that the Commonwealth need

not to prove that “the vehicle was in motion at the time of the incident[.]”

Id.   Instead, “[a] determination of actual physical control of a vehicle is

based upon the totality of the circumstances” that the Commonwealth may

establish by circumstantial evidence.   Commonwealth v. Williams, 871

A.2d 254, 259 (Pa.Super. 2005).

      Appellant urges us to rely on our reasoning in Commonwealth v.

Byers, 650 A.2d 468 (Pa.Super. 1994), wherein we found that evidence was

insufficient to convict the appellant of driving under the influence.      The



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appellant, who did not challenge that he was sufficiently intoxicated, was

discovered by a patrolling officer at 3:00 a.m. asleep in his car. His parked

vehicle was running, and its headlights were on.                    The Byers Court

acknowledged the appellant’s assertion that he was “sleeping it off,”

recognizing that “[t]he policy behind the drunk driving laws supports

[reversal of his conviction]. The purpose of these laws is to keep intoxicated

drivers off of the road and protect the public at large.”               Byers at 471

(citation omitted).

      We     reject   Appellant’s   invitation   to    rely   on    Byers,   finding   it

distinguishable on two important facts. First, the trial court herein credited

Officer Crabb’s testimony, a credibility determination by which we are

bound, that the vehicle was in the neutral position and the brakes were

engaged as evidenced by visible brake lights.            N.T., 9/25/15, at 17.     The

trial court therefore found that the vehicle was not parked, which could

reasonably have suggested that it had been stationary.                Unlike Appellant

herein, Byers’s vehicle was indisputably parked and there is no indication

that he pressed either of the foot pedals.            Such is not the case we have

before us.    Second, Appellant acknowledges that the vehicle was on the

street when he was approached by Officer Crabb.                Id. at 29.    Appellant

Byers, in contrast, was in a vehicle that was in the parking lot of a local

lounge when approached by the arresting officer.                   It is apparent that

Appellant herein, considerably intoxicated in the driver’s seat of a vehicle in

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the neutral position and stopped on the road, exhibited conduct that the

legislature sought to deter in crafting our drunk driving laws. As Byers is

readily distinguishable on the facts, we do not find it is binding.1

       We instead look to Williams, supra.           In Williams, we rejected the

appellant’s    argument      that   the   evidence   presented   against   him   was

insufficient in a trial for charges of driving under the influence where the

Commonwealth presented “testimony that the arresting officer found

[a]ppellant in a vehicle parked outside a restaurant, the headlights were on,

and the transmission was in park position.”            Id. at 258.     His claim of

insufficiency rested upon the fact that the Commonwealth did not “eliminate

the possibility” that he drank in the restaurant or in the parking lot rather

than at a location that required him to travel; thus, the Commonwealth

could not have conclusively proven that he was ever in actual physical

control of the vehicle while intoxicated as required for conviction under the

drunk driving statute.

       The Williams Court noted that “[o]ur 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
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1
  Though we find it inapplicable, we also recognize that our High Court
criticized the Byers Court’s consideration of whether an intoxicated driver
posed a threat to public safety, as such “is not a relevant consideration
under the drunk driving statutes.” Commonwealth v. Wolen, 685 A.2d
1384, 1386 (Pa. 1996).



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location of the vehicle, and additional evidence showing that the defendant

had driven the vehicle.” Id. at 259 (citation omitted). In affirming the trial

court’s decision that the appellant was in actual physical control of the

vehicle, we recognized that he was found in the early morning hours, sitting

in the driver’s seat of a running car that had engaged headlights and was

atypically parked. He admitted to drinking alcohol, had a BAC of .138%, and

his only evidence was his own self-serving testimony that was rejected by

the trial court as incredible.

      Appellant herein, urging this Court to accept his version of the facts,

continues to argue that he only entered the car to charge his phone and that

the running engine, brake lights, and neutral position of the transmission are

not circumstantially indicative that he had driven the car. As in Williams,

crediting Appellant’s arguments requires this Court to accept his facts,

despite that the trial court declined to do so. That, however, requires us to

view evidence in a light most favorable to Appellant, which we cannot do

under our standard of review. Indeed, as the Commonwealth is the verdict

winner below, it is entitled to a favorable interpretation of the evidence,

including   all   reasonable     inferences   therefrom.   Importantly,   “[t]he

Commonwealth ‘need not preclude every possibility of innocence’ or

establish the defendant's guilt to a mathematical certainty.”     Williams at

259 (citing Commonwealth v. Johnson, 833 A.2d 260, 264 (Pa.Super.

2003)).

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      When Officer Crabb approached Appellant in the vehicle, the officer

noticed that the car was running, its headlights were off, and, despite clear

weather, its windshield wipers were engaged.        N.T., 9/25/15, at 7.   The

vehicle was in neutral, facing the wrong direction with the parking lights

activated. Id. at 8, 17. Upon approaching, Officer Crabb recognized that

Appellant had slurred speech, glassy eyes, and an odor of alcohol.     Id. at

10.   Appellant admitted that he “probably drank too much” and was later

found to have a BAC of .213%. Id. at 10. The trial court found incredible

Appellant’s testimony that he went to the vehicle only to charge his phone.

Id. at 40. This evidence is sufficient to sustain his conviction.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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