J-S54024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHRISTOPHER S. HOFFER                      :
                                               :
                       Appellant               :   No. 333 MDA 2019

       Appeal from the Judgment of Sentence Entered September 19, 2018
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0000463-2017


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

MEMORANDUM BY LAZARUS, J.:                            FILED OCTOBER 29, 2019

        Christopher S. Hoffer appeals from his judgment of sentence, entered

in the Court of Common Pleas of Lebanon County, after a jury found him guilty

of two counts of driving under the influence (DUI)—controlled substance.1

Upon careful review, we affirm.

        The facts of this case are as follows:

        At trial, the Commonwealth called Travis Martin, a paramedic with
        First Aid and Safety Patrol of Lebanon[,] as a witness. Mr. Martin
        testified that on December 14, 2016, at approximately 3:00 P.M.,
        he responded in an ambulance to a call at 4th and Pershing Streets
        in Lebanon. When he arrived, Mr. Martin found an unconscious
        male, later identified as [Hoffer], in the driver[-]side seat of a
        white sedan who was not breathing. The white sedan was
        positioned approximately four to five feet from the curb and the
        passenger[-]side window was broken. As Mr. Martin approached
        the vehicle, he observed that the engine was still running, the car
        was in drive, though not moving, and was situated on the
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1   75 Pa.C.S.A. § 3802(d)(1)(ii); 75 Pa.C.S.A. § 3802(d)(2).
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     roadway. Mr. Martin then shifted the car into park and turned the
     car off.

     Mr. Martin observed that [Hoffer] was pale, cyanotic, diaphoretic,
     wasn’t breathing and had a faint heartbeat. Mr. Martin indicated
     that his experience informed him that symptoms exhibited by
     [Hoffer] were consistent with someone under the influence of
     opiates.

     Mr. Martin was able to remove [Hoffer] from the vehicle and place
     [him] on a stretcher in the ambulance [where] Mr. Martin’s
     partner began manual breathing on [Hoffer] and Mr. Martin
     administered Narcan in order to allow [Hoffer] to begin breathing.
     After reviving [Hoffer], Mr. Martin asked [Hoffer] standard
     questions, including what he had ingested, and [Hoffer]
     answer[ed] that he had ingested heroin.          Mr. Martin then
     transported [Hoffer] to the hospital.

     On cross-examination, Mr. Martin could not remember whether
     the vehicle was a push-start or key ignition and admitted that he
     did not include the fact that he placed the car in park and turned
     off the engine in his report. Furthermore, Mr. Martin stated that
     he did not take possession of any key or fob from [Hoffer] and he
     did not recall even seeing a key or fob on [Hoffer’s] person.

                                    ...

     The paramedics then transported [Hoffer] to Good Samaritan
     Hospital where Officer Bowman requested consent from [Hoffer]
     to administer a blood draw, to which [Hoffer] consented. The
     parties stipulated that the blood draw was consensual and was
     conducted in compliance with normal hospital procedures. The
     parties further stipulated that the blood samples were analyzed at
     MEDTOX Laboratories by Dr. Karla Walker and that Dr. Walker
     prepared a report detailing her determinations based on the
     sample testing. Officer Bowman then testified that morphine and
     amphetamine, both Schedule II controlled substances under
     Pennsylvania law, were found in the samples of [Hoffer’s] blood.

     On cross-examination, Officer Bowman stated that he could not
     recall whether the vehicle[’]s engine was running when he arrived
     because he was focused on [Hoffer]. Officer Bowman further
     stated that no key or fob was recovered from the scene or on


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      [Hoffer’s] person and that [Hoffer] never admitted to driving the
      vehicle.

      [Hoffer] called Casey Bossler, [Hoffer’s] girlfriend and the owner
      of the vehicle in which [Hoffer] was found, as a witness. Ms.
      Bossler testified that on December 14, 2016[,] she had driven the
      vehicle, with [Hoffer] as a passenger, to the 300 block of 4th
      Street and parked the vehicle as it was found. Ms. Bossler stated
      that she was in a hurry because she was supposed to meet a friend
      in order to attend her children’s Christmas show. [Hoffer] needed
      to go somewhere else, and was making Ms. Bossler anxious so
      she decided to quickly park the vehicle on the street and have her
      friend pick her up where she parked. Ms. Bossler believed that
      she turned the car off when she left. Ms. Bossler left [Hoffer] at
      the vehicle and claimed that he did not have a key to the car.

      Ms. Bossler stated that the vehicle is a push-start ignition in which
      a driver would need to have the key fob in order to start the
      vehicle, but [Hoffer] did not have the fob. Ms. Bossler asserted
      that she retained one of the fobs and the other was at her parents’
      house. Ms. Bossler arrived back at the scene later to find that her
      vehicle was being towed, but was able to retrieve the vehicle
      because she had the fob.

      [Hoffer] next called Joseph Blauch as a witness. Mr. Blauch
      testified that on December 14, 2016, he was walking down the
      street and found an individual slumped over in a white sedan. Mr.
      Blauch called 9-1-1 and then attempted to gain access to the
      vehicle, eventually breaking the passenger[-]side window. Mr.
      Blauch could not remember how the vehicle was situated on the
      street and he did not take notice as to whether there were any
      keys or a fob in the vehicle, but stated that the engine was not
      running when he arrived. Mr. Blauch admitted that he knew
      [Hoffer] from high school, but denied being friends with [Hoffer].

Trial Court Opinion, 1/4/19, at 1–5 (citations to record omitted).

      At the conclusion of the trial, the jury found Hoffer guilty on both DUI

counts. On September 19, 2018, the court sentenced Hoffer to 7 days to 6

months’ imprisonment. On October 1, 2018, Hoffer timely filed post-sentence




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motions.2 The court denied the motions and Hoffer timely flied his notice of

appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal.

       Hoffer raises the following issues for our review:

       (1)    The Commonwealth failed to present sufficient evidence at
              trial to prove beyond a reasonable doubt that Hoffer was in
              actual physical control of the operation of a motor vehicle
              while under the influence of a controlled substance[.]

       (2)    The guilty verdicts were against the weight of the evidence.

Brief of Appellant, at 4.

       Hoffer first challenges the sufficiency of the evidence in proving that he

was in actual physical control of the vehicle while under the influence of a

controlled substance.

       We review Hoffer’s 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
       [re-]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
       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
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2We note that Hoffer preserved the issue that the verdict was against the
weight of the evidence in his post-sentence motion. See Pa.R.Crim.P.
607(A)(3).

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

Commonwealth v. Giordano, 121 A.3d 988, 1002-1003 (Pa. Super. 2015).

      The jury convicted Hoffer under two different subsections of section

3802, driving under the influence—controlled substance. 75 Pa.C.S.A. §§

3802(d)(1)(ii); 3802(d)(2). “An individual may not drive, operate or be in

actual physical control of the movement of a vehicle” if there is any amount

of a Schedule II controlled substance in the individual’s bloodstream that has

not been medically prescribed to the individual. 75 Pa.C.S.A. § 3802(d)(1)(ii).

Further, an individual may not drive, operate, or be in physical control of a

vehicle when “[t]he individual is under the influence of a drug or combination

of drugs to a degree which impairs the individual’s ability to safely drive,

operate, or be in actual physical control of the vehicle.”      75 Pa.C.S.A. §

3802(d)(2).

      An individual is in “actual physical control” of a vehicle when he or she

is in “control of the movements of either the machinery of the motor vehicle

or of the management of the vehicle itself, without a requirement that the

entire vehicle be in motion.” Commonwealth v. Crum, 523 A.2d 799, 801–

802 (Pa. Super. 1987). To prove that an individual was in actual physical

control of the vehicle, a combination of evidence is considered, including:



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whether the motor was running, the vehicle’s location, and any other

additional evidence to demonstrate the individual had driven the car.

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008). The

location of a vehicle is a key factor in finding control, and a suspect location

of   a    vehicle    supports   an   inference   that   the   vehicle   was   driven.

Commonwealth v. Brotherson, 888 A.2d 901, 905 (Pa. Super. 2005); see

also Crum, 523 A.2d at 800 (finding actual physical control when car was

found parked along side of road with headlights on and motor running); see

also Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa. Super. 1991)

(finding actual physical control when driver was found parked in ally with

engine running).

         Hoffer argues that the Commonwealth failed to prove that the engine

was running, and, thus, that he was in actual physical control of the vehicle.

We disagree. Hoffer bases his argument on the testimony of his girlfriend,

Bossler, who stated that she parked the car and took the key fob. As a result,

Hoffer would have been unable to start the car. N.T. Trial, 7/6/18, at 29.

Hoffer also points to the testimony of Blauch, a high school acquaintance, who

testified that when he approached the car, the engine was off. Id. at 38-40.

         The Commonwealth, however, presented the testimony of Martin, a

paramedic, who stated that when he responded to the scene, he found Hoffer

in the car, unconscious, with the engine still running, and the car in drive. Id.

at 5-8. Martin explained that he had to shift the car into park and turn the

engine off.         Id. at 7, 13-14.    Further, the Commonwealth presented

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photographs that showed the car situated on the roadway, four to five feet off

the curb and parallel to the cross-street of the intersection. Id. at 11.

        Here, the jury, as fact-finder, assessed the credibility of all witnesses

and considered the evidence produced at trial. The jury was free to believe

all, part or none of the evidence. Giordano, supra at 1003. Martin clearly

and consistently stated that when he came upon the vehicle, the engine was

on, the car was in drive, and Hoffer’s foot was on the brake. N.T. Trial, 7/6/18,

at 5-8. The photographic evidence also showed that the car was in a suspect

position on the road, which supports the inference that Hoffer was driving and,

further, demonstrates that he had actual physical control of the vehicle. Id.

at 11; see Brotherson, supra at 905. Finally, both parties stipulated that

Hoffer’s blood contained morphine3 and amphetamine,4 a combination of

Schedule II drugs, which impaired Hoffer’s ability to be in actual physical

control of the vehicle.         75 Pa.C.S.A. § 3802(d)(1)(ii); 75 Pa.C.S.A. §

3802(d)(2).

        Based on the foregoing evidence, as well as the reasonable inferences

derived therefrom, the jury could have found Hoffer guilty on both counts of

driving under the influence of a controlled substance. Giordano, supra.

Accordingly, he is entitled to no relief.




____________________________________________


3   35 P.S. § 780-104(2)(i)(1).

4   35 P.S. § 780-104(2)(iii)(1).

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      Hoffer next claims that the verdict was contrary to the weight of the

evidence.

      We evaluate Hoffer’s weight claim under the following standard:

      A claim alleging the verdict was against the weight of the evidence
      is addressed to the discretion of the trial court. Accordingly, an
      appellate court reviews the exercise of the trial court’s discretion;
      it does not answer for itself whether the verdict was against the
      weight of the evidence. It is well[-]settled that the jury is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the evidence, and a new trial based on a weight of
      the evidence claim is only warranted where the jury’s verdict is so
      contrary to the evidence that it shocks one’s sense of justice. In
      determining whether this standard has been met, appellate review
      is limited to whether the trial judge’s discretion was properly
      exercised, and relief will only be granted where the facts and
      inferences of record disclose a palpable abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Here, Hoffer contends the jury’s verdict was against the weight of the

evidence because “[t]he [c]ourt should have given less weight to Martin’s

testimony because Martin could not recall how he turned off the car engine,

and never recovered a key or key fob which would have been needed to turn

off the engine.” Appellant’s Brief, at 12. Hoffer also claims that the court

“should have given more weight to the testimony of Bossler[,] who testified

that Hoffer never had a key to the car[,] and Blauch[,] who testified that the

car’s engine was not running when he found Hoffer passed out in the white

sedan.” Id.




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      We reiterate that it is within the sole discretion of the jury to assess the

credibility of the evidence at trial. Here, the Commonwealth presented the

testimony of Martin and Officer Bowman, along with photographs of the scene

to corroborate their testimony. The jury resolved the conflicts in testimony,

and found that the Commonwealth’s witnesses were more credible than those

of the defense. The jury was free to believe all, part, or none of the evidence;

thus, we find no palpable abuse of discretion.       Houser, supra; see also

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (“Appellate review

of a weight claim is a review of the exercise of discretion, not of the underlying

question of whether the verdict is against the weight of the evidence.”). The

trial court did not abuse its discretion in finding the verdict was not against

the weight of the evidence. Houser, supra.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019




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