J-A30031-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
                 v.                            :
                                               :
    DAWN NICHELLE JONES,                       :
                                               :
                      Appellant                : No. 124 WDA 2018


          Appeal from the Judgment of Sentence December 19, 2017
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0010837-2016

BEFORE:       SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                       FILED MARCH 19, 2019

       Dawn Nichelle Jones (Appellant) appeals from the judgment of

sentence imposed after she was found guilty of driving under the influence

(DUI) of alcohol, driving without a license, and possessing an open alcoholic

beverage container in a motor vehicle. Upon review, we vacate and remand

for a new trial.

       On June 17, 2016, around 5:00 p.m., Officers Michael Guzma and

Brandy Harcha of the McKees Rocks Police Department received a dispatch

regarding a possibly intoxicated female in a PNC Bank drive-through.1 N.T.,

____________________________________________


1 Pertinent to this appeal, Officers Guzma and Harcha provided testimony
regarding the contents of the 911 call since the caller, a PNC Bank teller,
was not present at trial. Appellant’s counsel objected to this testimony as
hearsay. N.T., 3/12/2017, at 6 (“I have to object to any hearsay statements
(Footnote Continued Next Page)


*Retired Senior Judge assigned to the Superior Court.
J-A30031-18


5/12/2017 at 6. The dispatch relayed that the vehicle was seen driving off

in the direction of Bell Avenue. Id. The officers responded from the police

station, which is located on Bell Avenue, and encountered a vehicle matching

the description given in the dispatch approximately 30 seconds to one

minute later, parked in a “no parking” loading zone behind a shopping

center.2 Id. at 6-7, 12, 15.

      The officers approached the vehicle and attempted to make contact

with the female occupant, later identified as Appellant, who was sitting in

the driver’s seat, slumped over the steering wheel. Id. at 7. Officer Guzma

observed an empty bottle of vodka, bottle of ginger ale, and prescription

drug bottles on the passenger’s side of the vehicle. Id. at 9. Officer Guzma

testified that he and Officer Harcha eventually made contact with Appellant,

who had “bloodshot, glassy eyes, and there was an odor of an alcoholic

beverage on her breath and person.” Id. at 7. When asked to step out of

(Footnote Continued) _______________________

by the PNC teller.”). The trial court permitted the testimony for the “limited
purpose” of why the officers “responded to the scene for the investigation,”
otherwise known as the course of conduct exception to the hearsay rule. Id.
at 6. See also Commonwealth v. Carroll, 513 A.2d 1069, 1071 (Pa.
Super. 1986) (“[A]n out-of-court statement offered to explain a course of
conduct is not hearsay.”).

2 Ken Skepanski, a tow truck driver who was contacted by police to tow
Appellant’s vehicle, testified that he arrived to the scene around 5:30 p.m.
and observed Appellant’s vehicle behind the shopping center.             N.T.,
10/27/2017, at 7. Skepanski stated that the vehicle “wasn’t in a spot. It was
in the aisle.” Id.




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the vehicle, Appellant “nearly fell into [sic] the roadway.”         Id. at 8.

Appellant consented to several field sobriety tests, all of which she failed.

Id. 8-9. Both officers opined that Appellant was too intoxicated to operate a

vehicle safely.3 Id. at 10, 18.

        Based upon the foregoing, Appellant was charged with, inter alia, DUI,

driving without a license,4 and possessing an open alcoholic beverage

container in a motor vehicle. Appellant eventually proceeded to a non-jury

trial and, following three days5 of testimony, she was found guilty of the

aforementioned offenses. On December 19, 2017, Appellant was sentenced

to six months’ probation and was directed to follow the recommendations of

her drug and alcohol assessment, complete highway safety school and pay

two fines.
____________________________________________


3 Contrary to the testimony elicited by the Commonwealth that the officers
located Appellant’s vehicle around 5:00 p.m., Appellant testified that police
encountered her at 8:00 a.m., after she finished working a double shift.
N.T., 5/12/2017, at 23. Appellant testified it was her friend, William Pettus,
who drove the vehicle. Id.       Appellant “disputed the [officers’] testimony
that the vehicle was parked illegally behind the [shopping] plaza and stated
the vehicle was in front of the PNC Bank. She said that Mr. Pettus walked to
the shopping plaza across the street and she remained in the vehicle waiting
for the bank to open.” Trial Court Opinion, 5/24/2018, at 3. Corroborating
Appellant’s version of events, Mr. Pettus testified that he drove Appellant to
the bank “at 8:00 a.m.[] and left her in the vehicle to go play some lottery
numbers at the beer distributor. When he returned twenty to thirty minutes
later, both [Appellant] and the vehicle were gone.” Id.

4The officers did a license check, which revealed that Appellant’s license was
suspended. N.T., 5/12/2017, at 9.

5   Appellant’s trial was twice continued to accommodate testifying witnesses.



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        Appellant timely filed a notice of appeal on January 18, 2018.6               On

appeal,     Appellant    sets   forth    the   following   issues    for   this   Court’s

consideration:

     1. Whether the evidence was insufficient to find that [Appellant]
        drove or was in actual physical control of a vehicle where there
        was no substantive evidence that [Appellant] operated the
        vehicle in question prior to being approached by police officers?

     2. Whether the trial court abused its discretion in relying on the
        substance of an inadmissible hearsay statement to convict
        [Appellant] of DUI and driving without a license, when the
        statement had only been admitted into evidence to show the
        officers’ course of conduct?

Appellant’s Brief at 5 (unnecessary capitalization and suggested answers

omitted).

        We begin with Appellant’s sufficiency challenge.            Appellant contends

“the evidence is wholly insufficient to show that [Appellant] drove or was in

actual physical control of her vehicle.” Id. at 17.

        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
____________________________________________


6   Both Appellant and the trial court complied with Pa.R.A.P. 1925.



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      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) (internal

quotation marks and citations omitted).

      “Furthermore, [i]n evaluating the sufficiency of the evidence, we do

not review a diminished record. Rather, the law is clear that we are required

to consider all evidence that was actually received, without consideration as

to the admissibility of that evidence or whether the trial court’s evidentiary

rulings are correct.” Commonwealth v. Gray, 867 A.2d 560, 567 (Pa.

Super. 2005) (citation and quotation marks omitted; bracket in original).

Consequently, our review of Appellant’s sufficiency challenge is unaffected

by our resolution of the evidentiary issue raised by Appellant, which we

address infra. See Commonwealth v. Koch, 39 A.3d 996 (Pa. Super.

2011) (concluding that while the evidence was sufficient based upon, inter

alia, improperly admitted text messages, a new trial was warranted because

the text messages were inadmissible hearsay and the admission of the text

messages was not harmless error).




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      In this case, Appellant was charged with DUI- general impairment.

“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.

§ 3802(a)(1).

      The term “operate” requires evidence of actual physical control
      of the vehicle to be determined based upon the totality of the
      circumstances. 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. The Commonwealth can
      establish that a defendant had “actual physical control” of a
      vehicle through wholly circumstantial evidence. 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. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (some

quotation marks and citations omitted).        “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.” Johnson, 833 A.2d at 263 (citation omitted).

      Viewing the evidence introduced at trial in the light most favorable to

the Commonwealth, we find the evidence sufficient to establish that

Appellant was in actual physical control of her vehicle during the relevant

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time.     As set forth supra, at Appellant’s non-jury trial, Officer Guzma

testified that a PNC Bank teller had called 911 and “reported that there was

possibly an intoxicated female in [the Bank’s] drive-through.”               N.T.,

5/12/2017, at 6. Officer Guzma stated that the caller had given “a partial

plate and said that [the vehicle] took off in the direction of Bell Avenue.”

Id. Officer Guzma, along with Officer Harcha “responded from the [police]

station, which is located on Bell Avenue, and located a vehicle matching the

description given and the license plate. It was parked in a no parking zone

behind the shopping center.”          Id. at 6-7.   The woman they encountered,

later identified as Appellant, was found slumped over the steering wheel in

the driver’s seat of the parked vehicle, and matched the description given in

the 911 call.7 Id. at 7.

        Upon approaching the vehicle, Officer Guzma saw, inter alia, an empty

bottle of vodka and prescription drug bottles on the passenger’s side of the

vehicle. Upon making contact with Appellant, Officer Guzma observed
____________________________________________


7 Officer Guzma’s testimony was corroborated by Officer Harcha, who
testified as follows:

        We received a phone call for a female falling asleep in the drive-
        through at PNC Bank. A partial plate was given to officers along
        with a description of the vehicle and the female and that it was
        last seen headed towards Bell Avenue, which is where our police
        station was located. At th[at] time[,] we exited the police
        station, located the vehicle behind the [shopping center,] and
        came into contact with the driver, [Appellant].

N.T., 5/12/2017, at 15.



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Appellant’s bloodshot, glassy eyes, and an odor of alcohol emanating from

her person.    Id. at 9.   Officer Harcha testified that no one other than

Appellant was “directly by the car.” Id. at 16. Eventually, the responding

tow truck driver, Mr. Skepanski, received the keys to Appellant’s car from

the responding officers and towed the vehicle.       N.T., 10/27/2017, at 7.

Based upon the foregoing, the evidence was sufficient to establish that

Appellant, who was observed falling asleep at the wheel at the PNC Bank

before driving off, and whom police encountered passed out and visibly

intoxicated when they located Appellant in the driver’s seat slumped over

the steering wheel, was in physical control of her vehicle. No relief is due.

      We now turn to Appellant’s claim that the trial court abused its

discretion when it considered hearsay statements, accepted by the trial court

for the limited purpose of explaining the officers’ course of conduct, for

substantive purposes. Appellant’s Brief at 12. We review this issue mindful

of the following. “Matters within the trial court’s discretion are reviewed on

appeal under a deferential standard, and any such rulings or determinations

will not be disturbed short of a finding that the trial court committed a clear

abuse of discretion or an error of law controlling the outcome of the case.”

Commonwealth v. Koch, 106 A.3d 705, 711 (Pa. 2014) (quotation marks

omitted).

      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


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J-A30031-18


      bias, prejudice, ill-will or partiality, as shown by the evidence of
      record.

            Hearsay is “a statement, other than one made by the
      declarant while testifying at the trial or hearing, offered in
      evidence to prove the truth of the matter asserted.” Pa.R.E.
      801(c). Hearsay testimony is per se inadmissible in this
      Commonwealth, except as provided in the Pennsylvania Rules of
      Evidence, by other rules prescribed by the Pennsylvania
      Supreme Court, or by statute. On the other hand, evidence that
      would constitute inadmissible hearsay if offered to for one
      purpose may be admitted for another purpose[.] An out-of-
      court statement offered to explain a course of conduct is not
      hearsay.

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

quotation marks and citations omitted).       See also Commonwealth v.

Cruz, 414 A.2d 1032, 1035 (Pa. 1980) (Pointing out that contents of a

police radio call are admissible as an out-of-court statement offered to

explain the officer’s course of conduct).

      With respect to certain hearsay statements, our Supreme Court has

explained that

      the distinction can be subtle between a statement that, if
      admitted, would serve as affirmative and substantive evidence of
      the accused’s guilt, and non-hearsay that may be admitted to
      establish some other aspect of a case, such as motive or a
      witness’s relevant course of conduct. On appeal, reviewing
      courts should be wary of proffered bases for admission that may
      be pretexts for getting fact-bound evidence admitted for a
      substantive purpose.

Koch, 106 A.3d at 715.

      As set forth in more detail supra, at Appellant’s non-jury trial, the

Commonwealth introduced details of a 911 call made by a PNC Bank teller,


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who was not present at trial.          Because the teller did not attend trial, the

Commonwealth elicited this information from the two responding officers.

N.T., 3/12/2017, at 6.          The defense objected to the introduction of this

testimony as inadmissible hearsay.             Id. The trial court ultimately allowed

the testimony, finding the contents of the call could be presented to explain

“why [Officer Guzma] responded to the scene for the investigation, for that

limited purpose.”8 Id.

       The trial proceeded and following closing arguments, the trial court

found Appellant guilty of the aforementioned offenses. When announcing its

verdict, the trial court stated: “I think the Commonwealth has met [its]

burden with respect to the fact that [Appellant] was the person behind the

wheel at the PNC [Bank] and was the person behind the wheel when they

encountered her car 30 seconds later.” N.T., 10/27/2017, at 29. Appellant

contends it is this statement by the trial court that makes it clear that the

court, while admitting the testimony under the course-of-conduct exception,

erroneously considered the contents of the call for substantive purposes.

Appellant’s Brief at 29-30.       The Commonwealth concedes this fact, stating

____________________________________________


8 We question whether the testimony of the 911 call fell within the course of
conduct exception. In this case, the crucial issue was whether Appellant,
who was found by Officers passed out in the driver’s seat of her parked car,
had driven the vehicle while intoxicated. The 911 call and the Officers’
subsequent dispatch to locate Appellant’s vehicle was inconsequential to this
issue. Nevertheless, because Appellant did not raise this claim on appeal,
we decline to address it further.



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the trial court “despite ruling that the content of the 911 call was limited to

demonstrating the officers’ course of conduct, appeared to have actually

relied on it substantively in reaching [its] verdict.” Commonwealth’s Brief at

23. In its 1925(a) opinion, the trial court stated that Appellant’s “claim that

this court relied on a hearsay statement in coming to the verdict is just

false.” Trial Court Opinion, 5/24/2018, at 4. The trial court did not expound

on why Appellant’s assertion was incorrect.



      Upon review, we agree with Appellant that the trial court’s statement

shows that the court considered the 911 call for substantive purposes.

Initially, we note, “the testimony challenged herein constitutes inadmissible

hearsay.” Dent, 837 A.2d at 579. Over Appellant’s objection, the trial court

allowed the officers to testify about the contents of the call to explain the

officers’ course of conduct in leaving the police station to search for a

particular vehicle, and conducting an investigation when the officers

happened upon the vehicle behind the shopping center. To that end, we are

cognizant that

      [i]n criminal cases, an arresting or investigating officer should
      not be put in the false position of seeming just to have happened
      upon the scene; he should be allowed some explanation of his
      presence and conduct. His testimony that he acted “upon
      information received,” or words to that effect, should be
      sufficient.

Id. at 580.




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      In this case, the officers recounted the statements made by the PNC

Bank teller during the 911 call in great detail. This included a description of

the vehicle and its driver, as well as what the 911 caller perceived, i.e., that

the driver was possibly intoxicated.   Such testimony, when relied upon for

substantive purposes, goes beyond the limited purpose established by the

course of conduct exception. See id. at 581 (“‘Course of conduct’ narratives

often include out-of-court statements that are not offered for the truth of the

matter asserted therein; frequently, the statements are also non-essential to

the prosecution’s case, or the declarant testifies at trial, or the defendant

opened the door to the admission of the evidence, or the admission of the

statements was deemed harmless error.”).

      By finding that Appellant “was the person behind the wheel” at the

PNC Bank drive-through, it is clear to this Court that the trial court viewed

the statements outside the lens of explaining why the officers left the police

station in search of Appellant’s vehicle. Instead, the trial court’s statement

implied that it considered these statements for the truth of the matter

asserted; that there was an impaired woman behind the wheel of her vehicle

at a PNC drive-through who was seen driving away. This is exactly what the

course of conduct hearsay exception prohibits.    Thus, we find the trial court

abused its discretion. However, our inquiry does not end there.

            The     sole question remaining is whether this abuse of
      discretion   warrants a new trial. A new trial is mandated where
      the error    is not harmless beyond a reasonable doubt. As we
      explained    in Commonwealth v. Thornton, [431 A.2d 248 (Pa.

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     1981)] “[t]he doctrine of harmless error is a technique of
     appellate review designed to advance judicial economy by
     obviating the necessity for a retrial where the appellate court is
     convinced that a trial error was harmless beyond a reasonable
     doubt. Its purpose is premised on the well-settled proposition
     that ‘[a] defendant is entitled to a fair trial but not a perfect
     one.’” In Commonwealth v. Moore, 937 A.2d 1062 (Pa. 2007),
     our highest court reaffirmed that an error may be considered
     harmless only when the Commonwealth proves beyond a
     reasonable doubt that the error could not have contributed to
     the verdict. Whenever there is a “reasonable possibility” that an
     error “could have contributed to the verdict,” the error is not
     harmless.

Koch,   39    A.3d   at   1006   (some   citations   omitted).    See     also

Commonwealth v. Wright, 961 A.2d 119, 143 (Pa. 2008) (“[A]n error

cannot be harmless if there is a reasonable possibility the error might have

contributed to the conviction.”).   “The Commonwealth has the burden of

proving harmless error beyond a reasonable doubt.” Id.

     This burden is satisfied when the Commonwealth is able to show
     that: (1) the error did not prejudice the defendant or the
     prejudice was de minimis; or (2) the erroneously admitted
     evidence was merely cumulative of other untainted evidence
     which was substantially similar to the erroneously admitted
     evidence; or (3) the properly admitted and uncontradicted
     evidence of guilt was so overwhelming and the prejudicial affect
     of the error so insignificant by comparison that the error could
     not have contributed to the verdict.

Commonwealth v. Laich, 777 A.2d 1057, 1062–63 (Pa. 2001) (citation
omitted).

     In this case, while the Commonwealth does not per se argue harmless

error, the Commonwealth contends that any error made by the trial court

was inconsequential because (1) the course of conduct “restriction on the

911 call was not required under the rule against hearsay,” since the call was

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admissible under the present sense impression exception; and (2) there was

enough    circumstantial      evidence     presented     “irrespective    of     anything

contained in the 911 call.”           Commonwealth’s Brief at 23-24. We are not

persuaded by these arguments.

      First, the Commonwealth concedes that the trial court relied on the

contents of the 911 call for substantive purposes when announcing its

verdict, which our own review of the record confirms. Thus, as a prefatory

matter, we find the trial court’s reliance on these statements for substantive

purposes contributed to Appellant’s conviction. Secondly, we disagree with

the Commonwealth’s argument that this Court could find the 911 call was

admissible for substantive purposes under the present sense impression

exception.      Commonwealth’s Brief at 23.          “The present sense impression

exception to the hearsay rule permits testimony of declarations concerning

conditions      or     non-exciting     events     observed   by    the        declarant.”

Commonwealth v. Cunningham, 805 A.2d 566, 573 (Pa. Super. 2002);

Pa.R.E. 803(1).        Crucial to the present sense impression exception is the

timing of the statements. “The trustworthiness of the statement arises from

its   timing.        The   requirement     of      contemporaneousness,         or   near

contemporaneousness, reduces the chance of premeditated prevarication or

loss of memory.” Pa.R.E. 803(1), comment. Here, there was no testimony




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regarding whether the statements by the PNC Bank teller were made at or

around the time she perceived Appellant in her vehicle at the drive-through.9

       Lastly, we disagree that there was sufficient circumstantial evidence to

establish that Appellant was in physical control of her vehicle without

consideration of the 911 call for substantive purposes.      In reviewing the

evidence, and omitting the contents of the 911 call, the record reflects that

the Officers found Appellant’s vehicle behind a shopping center in a “no

parking” loading zone.            While there was testimony introduced that

Appellant’s vehicle was not in a parking spot, but rather in an “aisle,” there

was no evidence introduced that the area in which the vehicle was located

was frequently travelled or that it was parked in such a way as to impede

traffic.   Thus, the testimony regarding the location of the vehicle did not

definitely or even circumstantially establish that Appellant’s car could not

have been parked where it was for a significant period of time. Additionally,

there was no testimony that the car was warm to the touch, the keys were

in the ignition or any other indicia that the vehicle had recently been driven.

In light of the foregoing, because the Commonwealth has failed to convince

____________________________________________


9 Moreover, we find it inherently unfair to determine for the first time on
appeal that the trial court was allowed to consider the statements as
substantive evidence when Appellant relied on the trial court’s ruling that the
statements pertaining to the 911 call were to be used to explain course of
conduct only. Had Appellant known these statements could be used for
substantive purposes, she may have chosen to proceed differently.




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this Court that the trial court’s error was harmless, we find a new trial is

warranted.

      Judgment of sentence reversed. Case remanded for a new trial.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/19/2019




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