J-S37009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

REBECCA LYNN DIXON

                            Appellant                  No. 731 WDA 2015


             Appeal from the Judgment of Sentence April 24, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0014499-2013


BEFORE: GANTMAN, P.J., SHOGAN, J., and LAZARUS, J.

MEMORANDUM BY GANTMAN, P.J.:                            FILED JUNE 09, 2016

        Appellant, Rebecca Lynn Dixon, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas, following

her bench trial convictions for two counts of driving under the influence of

alcohol or controlled substance (“DUI”) (general impairment).1 We affirm.

        The trial court opinion sets forth the relevant facts of this case as

follows:

           At the non-jury trial on January 9, 2015, Counsel for
           [Appellant] and the Commonwealth stipulated that the
           testimony from the suppression hearing, the contents of
           the police report, and the crime lab report would be
           incorporated into the evidence presented at the non-jury
           trial. The only fact from the suppression hearing that was
           not incorporated into the non-jury trial [was] the results of
____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1).
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       the horizontal gaze nystagmus test. As such, the facts
       found to be credible by this [c]ourt are as follows: Officer
       Seth Masley of the Ingram Borough Police Department
       testified that he is a patrolman for the Ingram Borough
       Police Department and has been employed in that capacity
       since May 2012. On the evening of June 13, 2013, Officer
       Masley was working the 11 p.m. to 7 a.m. shift and was
       contacted at 3:50 a.m. by Crafton Police Sergeant
       Harvison, who advised that there was a vehicle crashed
       into a concrete pillar in the Crafton-Ingram Shopping
       Center on the Ingram side of the center. Upon arrival
       Office Masley noticed an unoccupied red Plymouth Breeze
       that was disabled due to the collision with a concrete pillar.
       At that point, Officer Masley ran the registration plate to
       ascertain the registered owner of the vehicle. The vehicle
       was registered to Rebecca Lynn Dixon of 248 Ingram
       Avenue, which is approximately four blocks from the
       shopping center.

       After calling for a tow truck to remove the vehicle, Officer
       Masley and Officer Scatena went from the shopping center
       to 248 Ingram Avenue to make contact with the registered
       owner. Officers Masley and Scatena knocked on the door
       to 248 Ingram Avenue and were greeted by Cindy
       Thompson. Cindy Thompson identified herself as being
       [Appellant’s] mother.       Officer Masley stated to Ms.
       Thompson that they were checking on the welfare of
       [Appellant] because they found her vehicle crashed in a
       parking lot. Ms. Thompson advised that [Appellant] was
       home, and consented to the officers entering the
       residence. [Appellant] came down from the upstairs of the
       residence, and Officer Masley noticed that she was
       unsteady on her feet and staggering. She had glassy and
       bloodshot eyes, and smelled alcohol. Officer Masley asked
       whether she had been drinking, and [Appellant] answered
       in the negative.

       Officer Masley asked her where she had been, and she
       stated that she was drinking at Mugshots, and her mother
       drove her home. Mugshots is a bar located in the Crafton-
       Ingram Shopping center that serves its last call at 2:00
       a.m. Vehicles are typically seen at Mugshots as late as
       3:00 a.m. He asked her whether someone else could have
       the keys to her vehicle or could have driven her vehicle,

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         and she replied, that no one else drove her vehicle and she
         had the keys. Officer Masley advised her that her car was
         totaled in the middle of the Crafton-Ingram Shopping
         Center, and she replied, “oh, really?” [Appellant]… further
         stated that her mother drove her home. The parties
         stipulated that Ms. Thompson denied driving her home.

         Officer Masley questioned [Appellant] regarding her
         injuries, and she indicated that she was not injured.
         Officer Masley then administered a field sobriety test,
         which she performed with “relatively minor difficulty.”
         Given that [Appellant] was recently involved in an
         accident, Officer Masley did not believe it was appropriate
         to continue with field sobriety tests, and placed her under
         arrest for suspicion of DUI. [Appellant] consented to a
         blood draw, which occurred at 4:50 a.m. [Appellant’s]
         BAC was 0.198 %.

(Trial Court Opinion, filed December 9, 2015, at 3-5) (internal citations to

record omitted).

      On September 11, 2014, Appellant filed a motion to suppress the

results of the blood test, arguing it was not taken within two (2) hours of her

last operation of the vehicle.     At the motion hearing, Appellant raised

another suppression issue, i.e., she was under custodial interrogation when

she came downstairs at home exhibiting various signs of intoxication while

the police were present at her house investigating an accident or DUI scene.

Appellant submitted a written brief in support of the new suppression issue

on November 10, 2014. The court denied the suppression motion by order

entered January 9, 2015.     On the same day, the court proceeded with a

bench trial where counsel stipulated to admission of the testimony from the

suppression hearing (excluding the horizontal gaze nystagmus testimony);


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the police report; and the lab results. Although charged with four offenses,

the court convicted Appellant of only two counts of DUI. On April 24, 2015,

the court sentenced Appellant to serve restrictive intermediate punishment

for thirty (30) days with work, school, and medical release privileges; serve

six (6) months’ probation; pay a $750 fine; undergo a drug and alcohol

evaluation; and attend highway safety school. The court imposed the

sentence on one of the DUI convictions with no further penalty on the other

DUI conviction.   Appellant timely filed a notice of appeal on May 8, 2015.

On May 11, 2015, Appellant filed an application to stay her sentence, fine,

and fees pending appeal. That same day, the court granted the application

and ordered Appellant to file a concise statement of errors complained of on

appeal, per Pa.R.A.P. 1925(b). Following the grant of an extension of time,

Appellant timely complied with the order on September 21, 2015.

      Appellant raises the following issue on appeal:

         WAS THE EVIDENCE INSUFFICIENT AS A MATTER OF LAW
         TO   SUPPORT   THE    CONVICTIONS    WHERE    THE
         COMMONWEALTH     FAILED   TO   PROVE   BEYOND   A
         REASONABLE DOUBT THAT [APPELLANT] WAS GENERALLY
         IMPAIRED, OR INCAPABLE OF SAFELY DRIVING,
         OPERATING, OR IN ACTUAL PHYSICAL CONTROL OF A
         MOTOR VEHICLE AT THE TIME OF THE ACCIDENT?

(Appellant’s Brief at 4).

      Appellant argues the Commonwealth failed to establish her general

impairment, incapability of safe driving, or actual physical control of the

vehicle by sufficient direct or circumstantial evidence because it could not


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demonstrate the time the vehicle crashed, that Appellant was driving the

vehicle when it crashed, or that she was intoxicated at the time of the crash.

Appellant further contends Officer Masley could not determine when the

vehicle was first observed in its damaged condition or how much time had

elapsed from the time of the crash to his confrontation with Appellant.

Appellant maintains her post-accident intoxicated state failed to prove

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

vehicle at the time of the crash or that alcohol rendered her incapable of

safely driving when she was in control of the vehicle. Appellant concludes

this Court must vacate her judgment of sentence, reverse her convictions,

and discharge her. We disagree.

      With respect to Appellant’s sufficiency claim:

         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

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        weight of the evidence produced, is free to believe all, part
        or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)). The DUI statute in relevant part provides:

        § 3802.     Driving under 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.

                                *     *   *

75 Pa.C.S.A. § 3802(a)(1). The term “operate” as used in the DUI statute

“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, 263 (Pa.Super. 2003).

     Regarding Appellant’s issue, the trial court reasoned as follows:

        In this matter, [Appellant’s] vehicle was found totaled in
        the parking lot of the bar where [Appellant] admitted that
        she had been drinking that evening.            [Appellant]
        acknowledged that she had the keys to her car, and that
        no one else had access to her vehicle. [Appellant] was
        clearly intoxicated, and her blood alcohol content was
        stipulated to be 0.198%.        In addition, Counsel for
        [Appellant] conceded that she [had been at some point]
        driving the vehicle.       As such, the Commonwealth

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         established beyond a reasonable doubt that [Appellant]
         operated her vehicle after imbibing a sufficient amount of
         alcohol that rendered her incapable of safely doing so.

(Trial Court Opinion at 5-6). A review of the record supports the trial court’s

reasoning.   Officer Masley received a report of a crashed vehicle at 3:50

a.m. in the parking lot of the Crafton-Ingram Shopping Center.        At 3:54

a.m., Officer Masley arrived at the scene to see that an empty, locked car

had struck a concrete pillar and was disabled by the damage, blocking two

handicapped parking spaces. Officer Masley stated in his police report that

he had “previously driven past [the] location at approximately 03:00 and

[the] vehicle was not in [that] location.”        Officer Masley determined

Appellant owned the vehicle and lived four blocks away, so he went to her

residence to investigate.   Appellant’s mother greeted Officer Masley and

stated Appellant was not home because her car was not present.          At the

insistence of the officer, however, Appellant’s mother realized Appellant was

present in the home. Officer Masley was invited inside. Appellant staggered

downstairs to speak with him.     He observed Appellant’s glassy, bloodshot

eyes and asked whether she had been drinking since she returned home.

She admitted she had been drinking at a bar in the shopping center earlier

that night but stated she did not drink once she returned home and she had

been asleep for two hours.       Despite these statements, Officer Masley

detected a strong odor of alcohol emanating from Appellant.       She claimed

her mother drove her home from the bar, but her mother later denied that


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fact. Appellant also admitted she had her car keys and told the officer no

one else had driven her car that night. When Officer Masley told Appellant

that her car was totaled in the shopping center parking lot, Appellant

appeared unalarmed and replied, “oh, really?” Viewing this evidence in the

light most favorable to the Commonwealth as the verdict winner, we

conclude the circumstantial evidence was sufficient to sustain Appellant’s

DUI convictions. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2016




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