J-S28044-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

JOSE RAMON MARTE

                        Appellant                    No. 1517 MDA 2014


          Appeal from the Judgment of Sentence April 30, 2014
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0000003-2014


BEFORE: BOWES, J., ALLEN, J., and LAZARUS, J.

MEMORANDUM BY LAZARUS, J.:                             FILED JULY 02, 2015

     Jose R. Marte appeals from the judgment of sentence imposed in the

Court of Common Pleas of Berks County after a jury trial before the

Honorable John A. Boccabella. We affirm.

     The trial court has set forth the facts of this matter as follows:

     On November 10th, 2013, at approximately 12:35 a.m., Officer
     Kyle Kunkle was dispatched to a Motor Vehicle Accident in the
     600 block of Gordon Street. The caller (witness) stated a male
     exited the crashed vehicle and seemed intoxicated.        When
     Officer Kunkle arrived at the scene [Marte] was standing and
     leaning on the rear of [the tow truck that Marte allegedly
     crashed into]. Officer Kunkle approached the male and identified
     himself. Officer Kunkle asked [Marte] if he was ok. The male
     responded and said “my back hurts”. Officer Kunkle told [Marte]
     not to move and explained to him that EMS was en route.

     While waiting for EMS, Officer Kunkle noticed a large bottle of
     alcohol in the front passenger foot well. [Marte] was swaying
     and had a hard time speaking. Officer Kunkle asked [Marte] if
     he wanted to go to the Hospital. [Marte] said “he was ok and
     did not want to go to the hospital”. During the conversation
J-S28044-15


        Officer Kunkle smelled a strong odor of [alcohol] on his breath.
        He asked [Marte] if he was drinking. [Marte] smiled at Officer
        Kunkle and stated “yes, I had been drinking”. Officer Kunkle
        asked [Marte] if he would be willing to do a sobriety test.
        [Marte] responded, “No, I don’t want to”. Officer Kunkle placed
        [Marte] under arrest for a possible DUI.

        [Marte] was transported to the DUI Center under the court
        house. [Marte] needed help walking to the center. Once inside
        the Sheriff’s department determined they would not keep
        [Marte] due to his high level of intoxication. [Marte] was taken
        to the DUI Center at St. Joseph’s and was read the implied
        consent DL-26 form. [Marte] did not consent to a blood draw.
        Ultimately, since the Sheriff[‘s] Department would not keep
        [Marte], he was transported to his residence and released to his
        mother.

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

        On November 10, 2013, Marte was charged with one count of driving

under the influence of alcohol (“DUI”),1 one count of driving while operating

privilege is suspended or revoked,2 one count of careless driving,3 and one

count of violating the restriction on a driver possessing an open alcoholic

beverage container.4        On April 3, 2014, a trial was held before Judge

Boccabella after which the jury found Marte guilty on all counts except the

____________________________________________


1
    75 Pa.C.S.A. § 3802.

2
    75 Pa.C.S.A. § 1543.

3
    75 Pa.C.S.A. § 3714.

4
    75 Pa.C.S.A. § 3809.




                                           -2-
J-S28044-15



open container charge. Marte was sentenced on April 30, 2014, to not less

than twelve (12) months’ nor more than five (5) years’ incarceration with a

credit for time served of one-hundred eighteen (118) days.               Marte’s post-

sentence motions were denied and he filed a timely notice of appeal to this

Court, as well as a court-ordered statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

        Marte raises the following issues for our consideration:

           A. Whether the evidence was insufficient to establish the
              guilty verdicts of Driving Under the Influence, Driving
              While Operating Privilege is Suspended or Revoked, and
              Careless Driving where the Commonwealth failed to prove
              beyond a reasonable doubt that [Marte] drove, operated,
              or was in actual physical control of the movement of a
              vehicle?

           B. Whether the trial court erred in denying [Marte’s]
              evidentiary objection to the Commonwealth introducing
              hearsay testimony from Abraham Quiles?

           C. Whether the verdicts were contrary to the weight of the
              evidence given the only testimony offered by the
              Commonwealth to establish that [Marte] was driving was
              hearsay evidence?

Brief of Appellant, at 8.

        Marte first challenges the sufficiency of the evidence to establish

convictions for DUI, driving while operating privilege is suspended or

revoked, and careless driving. Although Marte does not dispute that he was

under    the   influence    of   alcohol,   he    challenges   whether   or   not   the

Commonwealth established that he was in actual, physical control of the

motor vehicle.



                                            -3-
J-S28044-15


     We review a sufficiency of the evidence claim under the following

standard:

     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
     that of 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
     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. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(brackets omitted).

     Pennsylvania’s DUI statute provides as follows:

     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).

     Pennsylvania’s driving while operating privilege is suspended or

revoked statute provides as follows:

     Except as provided in subsection (b), any person who drives a
     motor vehicle on any highway or trafficway of this

                                       -4-
J-S28044-15


      Commonwealth after the commencement of a suspension,
      revocation or cancellation of the operating privilege and before
      the operating privilege has been restored is guilty of a summary
      offense and shall, upon conviction, be sentenced to pay a fine of
      $200.

75 Pa.C.S.A. § 1543(a).

      Finally, Pennsylvania’s careless driving statute provides as follows:

      Any person who drives a vehicle in careless disregard for the
      safety of persons or property is guilty of careless driving, a
      summary offense.

75 Pa.C.S.A. § 3714(a).

      The three offenses share the common element that the defendant

must be shown to have been driving or in control of a vehicle.         Marte is

challenging whether this element was proven beyond a reasonable doubt in

each of his convictions.

      “The Commonwealth can establish through wholly circumstantial

evidence that a defendant was driving, operating or in actual physical control

of a motor vehicle.” Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa.

Super. 2003).    Accordingly, eyewitness testimony that the defendant was

actually, physically driving the vehicle is not required. There are certain

factors to consider when determining whether the defendant was in actual

control of the movement of a vehicle, such as where the vehicle was located,

whether the engine was running, whether the lights were on, and whether

the defendant was located or seated in the vehicle.       Commonwealth v.

Woodruff, 668 A.2d 1158, 1162 (Pa. Super. 1995). In Commonwealth v.

Devereaux, 450 A.2d 704, 709 (Pa. Super. 1982), the defendant was found


                                     -5-
J-S28044-15



in the passenger seat of the vehicle after a crash. Devereaux was the only

person in the car and this Court held that it was proper, using the factors

above, to conclude beyond a reasonable doubt that Devereaux had been

driving the vehicle when it crashed. Id.

      Here, within ten (10) seconds of hearing the crash, Abraham Quiles,

the owner of the tow truck that Marte crashed into, looked out of his

bedroom window and saw only Marte outside, a mere few feet away from

the open driver’s side door.      The motor was running and the vehicle was

located with its left side against the tow truck with Marte standing outside of

the door.

      Moreover,    “the   facts    and    circumstances      established     by   the

Commonwealth      need    not     preclude     every   possibility   of   innocence.”

Commonwealth v. Lambert, 795 A.2d 1010, 1013 (Pa. Super. 2002).

“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.” Id.

      Here, as in Devereaux, the evidence is not so weak or inconclusive

that the circumstances could not lead a fact-finder to find beyond a

reasonable doubt that Marte was in actual, physical control of the motor

vehicle while he was intoxicated. Accordingly, viewing the evidence in the

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

the trial court that there was sufficient evidence to demonstrate that Marte

was driving or in control of the vehicle at the time of the crash.

                                         -6-
J-S28044-15



     Marte next claims that the trial court erred in denying his evidentiary

objection to certain testimony elicited from Abraham Quiles.       Quiles had

overheard a conversation between Marte’s mother and the owner of the car

that Marte was allegedly driving, Hernandez.     Specifically, Quiles testified

that, upon arriving at the scene, Marte’s mother “asked the guy, the owner

of the car, how come you let him drive. And he said I didn’t let him drive.

He took the car.” N.T. Trial, 05/22/14, at 75-76.

     The standard of review for a trial court’s evidentiary rulings is
     narrow.     The admissibility of evidence is solely within the
     discretion of the trial court and will be reversed only if the trial
     court has abused its discretion. 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 bias, prejudice, ill-will
     or partiality, as shown by the evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted).

     Here, the Commonwealth argues that the statements in question were

properly admitted at trial under the excited utterance exception to the

hearsay rule. Pennsylvania Rule of Evidence 803(2) provides an exception

to the hearsay rule for any “statement relating to a startling event or

condition, made while the declarant was under the stress of excitement that

it caused.” Pa.R.E. 803(2). To qualify as an excited utterance, a statement

must be a spontaneous declaration by a person who has suddenly been

“made subject to an overpowering emotion caused by some unexpected and

shocking occurrence, which that person had just participated in or closely


                                    -7-
J-S28044-15



witnessed, and made in reference to some phase of that occurrence which

he perceived.” Commonwealth v. Counterman, 719 A.2d 284, 299 (Pa.

1998). This declaration must be so close in time to the event that it was not

a product of reflection and deliberation. Id.

      Marte argues that because Marte’s mother and Hernandez did not

participate in or witness the accident, the excited utterance exception should

not apply. However, witnessing the actual accident occur is not required for

the excited utterance exception; the person must only be “subject to an

overpowering    emotion    caused   by   some    unexpected    and    shocking

occurrence.” Id.

      Here, the startling event for Marte’s mother was the realization that

her son was involved in a car accident. The startling event for Hernandez

was the realization that his car had been badly damaged by the accident.

Seeing that one’s child has been in a car accident fulfills this requirement as

does realizing that one’s car has been badly damaged. There is no evidence

of reflection or deliberation.   Therefore, these statements clearly fit the

excited utterance exception and the trial court properly admitted them as

evidence.

      Finally, Marte claims that the verdict was against the weight of the

evidence. For this Court to reverse the trial court’s verdict on weight of the

evidence grounds, we must determine that the verdict is so contrary to the

evidence as to shock one’s sense of justice. Commonwealth v. Clay, 64




                                     -8-
J-S28044-15



A.3d 1049, 1055 (Pa. 2013); Commonwealth v. Brown, 648 A.2d 1177,

1189 (Pa. 1994).

      To determine whether a trial court's decision constituted a palpable

abuse of discretion, an appellate court must:

         Examine the record and assess the weight of the evidence;
         not however, as the trial judge, to determine whether the
         preponderance of the evidence opposes the verdict, but
         rather to determine whether the court below in so finding
         plainly exceeded the limits of judicial discretion and
         invaded the exclusive domain of the jury.

Clay, 64 A.3d at 1056 (citations omitted). It is not the place of an appellate

court to invade the trial judge's discretion any more than a trial judge may

invade the province of a jury, unless both or either have palpably abused

their function. Thompson v. Philadelphia, 493 A.2d 669, 673 (Pa. 1985).

      Here, the jury’s verdict is not so contrary to the evidence as to shock

one’s sense of justice and to require a new trial. Within ten (10) seconds of

hearing a crash, Quiles witnessed Marte a mere few feet from the open

driver’s side door of the car, which had crashed into Quiles’ truck.      Marte

was the only person in the immediate area of the collision. There was no

room in between the car and the truck for a person as intoxicated as Marte

to have moved around the car that quickly.          In addition, Quiles heard

Marte’s mother and Hernandez discuss how Marte took Hernandez’s car.

Upon review of the record, we can discern no abuse of discretion on the part

of the trial court in finding that the verdict was not against the weight of the

evidence.

                                     -9-
J-S28044-15



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/2/2015




                                 - 10 -
