J-S39040-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :   IN THE SUPERIOR COURT OF
                                                    :        PENNSYLVANIA
                                                    :
                v.                                  :
                                                    :
                                                    :
    LANCE SIMPSON                                   :
                                                    :
                       Appellant                    :   No. 2846 EDA 2019

       Appeal from the Judgment of Sentence Entered September 4, 2019
     In the Court of Common Pleas of Delaware County Criminal Division at
                        No(s): CP-23-CR-0004545-2017


BEFORE: LAZARUS, J., OLSON, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                               FILED AUGUST 28, 2020

        Lance Simpson (Simpson) appeals from the September 4, 2019

judgment of sentence imposed by the Court of Common Pleas of Delaware

County (trial court) following his convictions for Driving Under the Influence

(DUI) and Accidental Damage to Unattended Vehicle.1 Simpson challenges

the sufficiency of the evidence to support his conviction. After careful review,

we affirm.

                                               I.

        The trial court summarized the facts of this case as follows:

        On April 14, 2017, Officer Begany was on patrol in the Drexel Hill
        section of Upper Darby Township, Delaware County, Pennsylvania.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(c), 3745(a).
J-S39040-20


     He was dispatched to the intersection of Burmont Road and
     Woodland Avenue to address a traffic hazard caused by a stray
     tire in the road way. Once on scene, Officer Begany learned from
     a passerby a vehicle missing a wheel was operating in the vicinity.
     ...

     Sergeant Kenny was also on patrol the night of April 14, 2017 and
     he too was dispatched to 3614 Highland Avenue, Upper Darby to
     investigate a hit and run accident. After meeting with the
     homeowner at 3614 Highland, Sergeant Kenny followed what he
     described as gouge marks in the roadway. The gouge marks lead
     to the intersection of Woodland Avenue and Burmont Road. This
     is the same intersection where Officer Begany located the castoff
     tire.

     Sergeant Kenny continued to follow the gouge marks from the
     intersection of Woodland Avenue and Burmont Road to 2228
     Steele Road. 2228 Steele Road is the home of Defendant
     Simpson. At the time of his arrest, Defendant Simpson was a
     uniformed police officer with the Upper Darby Township Police
     Department, Delaware County, Pennsylvania. Sergeant Kenny
     observed Defendant Simpson’s truck parked in the driveway of
     2228 Steele with a missing tire. Sergeant Kenny confirmed there
     was a clear path of gouge marks from 3614 Highland Avenue to
     the intersection of Woodland Avenue and Burmont Road. The
     gouge marks persisted on Burmont Road, crossed Township Line
     Road, and continued on Dermond Road to Steele Road.

     Officer William H. Sides is a twenty three (23) year veteran of the
     Upper Darby Township Police Department and was also patrolling
     the Drexel Hill section of the township on April 14, 2017. On that
     night, Officer Sides responded to a radio call and reported to the
     intersection of Burmont Road and Woodland Avenue. Officer
     Begany was the first to respond and he located a tire in the
     roadway by the time Officer Sides arrived. While on scene, Officer
     Sides received at least two reports of a gray pickup truck missing
     a tire but still traveling northbound on Burmont Road. Officer
     Sides observed gouge marks and fluids on Burmont Road; he
     followed these gouge marks on Burmont Road, to Dermond
     Avenue, across Township Line Road, to 2228 Steele Road.

     Officer Sides was aware that 2228 Steele was the home of his co-
     worker, Defendant Simpson. When he approached 2228 Steele,
     Officer Sides observed Defendant Simpson’s pickup truck in the

                                    -2-
J-S39040-20


     driveway with only three wheels and significant front end damage.
     Officer Sides radioed Captain Panagoplos[] and requested they
     meet at a nearby location. Officer Sides then met with Captain
     Panagoplos, advised Captain Panagoplos of what he discovered
     and turned the investigation over to Captain Panagoplos. . . .

     Captain Panagoplos drove to 2228 Steele and was met by a
     gentlemen who suggested Captain Panagoplos “make sure Lance
     is okay.”  Captain Panagoplos approached 2228 Steele and
     observed the gray pickup truck in the driveway with heavy front
     end damage on the driver’s side and a missing front tire.

     At this point in the investigation, Captain Panagoplos was joined
     by Officer Sides. Only the first floor lights of 2228 Steele were lit
     and there were no other vehicles in the driveway. Captain
     Panagoplos knocked loudly on the door of 2228 Steele Road for
     several minutes and Defendant Simpson eventually appeared
     from the rear of the property. Captain Panagoplos noticed
     Defendant Simpson was staggering and unsteady on his feet.
     When Captain Panagoplos approached Defendant Simpson,
     Captain Panagoplos noticed an odor of alcohol on Defendant
     Simpson’s breath. Captain Panagoplos also observed Defendant
     Simpson to be lethargic and slurring his speech. . . .[]

     At this juncture, Captain Panagoplos placed Defendant Simpson
     under arrest as Captain Panagoplos determined Defendant
     Simpson was intoxicated to such a degree that he was incapable
     of safely operating a vehicle on the highways of the
     Commonwealth. This decision to arrest was based on Captain
     Panagoplos’s observations of Defendant Simpson as well as[,]
     Defendant Simpson’s singular presence near the truck, the
     proximity of the accident scene to 2228 Steele, the gouge marks
     evidencing the likely route of the three wheeled vehicle, the
     limited timeframe and the comments from Defendant Simpson’s
     neighbor. . . .

     On the morning of April 15, 2017, Captain Johnson was contacted
     by the Upper Darby Township Superintendent of Police and
     assigned the investigation focusing on his fellow officer, Defendant
     Simpson. Among other things, Captain Johnson secured all
     pertinent 911 calls from the evening of April 14, 2017, interviewed
     the 911 operators, the Upper Darby Police officers involved and
     witness Adam Stevenson. As the result of his investigation,
     Captain Johnson determined on the night of April 14, 2017,

                                     -3-
J-S39040-20


     Defendant Simpson was drinking alcohol while attending a
     retirement party held at a tavern in nearby Haverford Township,
     Delaware County, Pennsylvania. Captain Johnson calculated there
     was an approximate one (1) hour gap in time from when
     Defendant Simpson left the tavern and the first documented 911
     call.

     The Commonwealth also presented two (2) private citizen
     witnesses. Robert B. Elderton resides at 3614 Highland Avenue
     which is located in the Drexel Hill section of Upper Darby
     Township, Delaware County, Pennsylvania. On the night of April
     14, 2017, Mr. Elderton parked his black Toyota Avalon along the
     curb on the street in front of his home. Close to midnight, Mr.
     Elderton heard a loud “bang” which roused him from his sleep.
     Mr. Elderton went to a window facing onto Highland Avenue and
     saw a gray pickup truck moving in the opposite direction of his
     parked car. The front driver’s side wheel and/or rim assembly of
     the gray pickup truck was actually “grinding a little bit of smoke”
     but still capable of fleeing the scene. Mr. Elderton went outside,
     inspected the damage to his vehicle and called 911. Upper Darby
     Township police officers arrived on scene within ten (10) minutes.
     The damage to the Toyota Avalon totaled in excess of $5,000.00.

     Finally, the Commonwealth presented to the testimony of Adam
     P. Stevenson. Mr. Stevenson resides at a corner property located
     at 1224 Dermond Road, Haverford Township, Delaware County,
     Pennsylvania.    Mr. Stevenson and Defendant Simpson are
     neighbors as Dermond Road and Steele Road intersect. On April
     14, 2017, as Mr. Stevenson was lying in bed just before midnight,
     he heard what he described as a “disabled vehicle . . . dragging
     something” outside the bedroom window.           As the vehicle
     approached his house the noise grew louder, stopped and then
     migrated towards the side of his home.

     Mr. Stevenson arose from his bed and peered out the bedroom
     window. He observed a pickup truck backing into the driveway of
     the Simpson residence. Mr. Stevenson recognized the pickup
     truck as the vehicle driven by Defendant Simpson. The vehicle
     was screeching as it backed into the driveway and was missing a
     tire. Mr. Stevenson eventually observed Defendant Simpson exit
     the vehicle.

     Mr. Stevenson approached Defendant Simpson in Defendant
     Simpson’s driveway and inquired if he was injured. Defendant

                                    -4-
J-S39040-20


      Simpson appeared intoxicated to Mr. Stevenson as Defendant
      Simpson was unsteady on his feet and there was a mild odor of
      alcohol present. Mr. Stevenson advised Defendant Simpson the
      pickup was likely a total loss. Mr. Stevenson offered to take
      Defendant Simpson back to the scene of the accident, but
      Defendant Simpson denied being involved in any automobile
      accident.

      Mr. Stevenson then accompanied Defendant Simpson to the
      doorway of the Simpson home and Defendant Simpson entered.
      While Mr. Stevenson was returning to his home, a police cruiser
      advanced. The officer inquired who owned the damaged vehicle
      and Mr. Stevenson advised it belonged to Defendant Simpson.
      This first officer drove off. Mr. Stevenson began retrieving car
      parts that were strewn in front of his home. Sometime later that
      early morning, Mr. Stevenson was approached by a second
      uniformed officer, and following questioning similar to that posed
      by the first officer, he told the second officer the truck belonged
      to Defendant Simpson. A few days after the incident, Mr.
      Stevenson agreed to report to the Upper Darby Township Police
      Headquarters, speak with Captain Thomas A. Johnson, Jr., and
      provide a written statement.

Trial Court Opinion, 12/12/19, at 2-13 (citations omitted). Following a non-

jury trial, the trial court convicted Simpson of the above-mentioned charges

and sentenced him to 72 hours to 6 months’ incarceration for the count of DUI

and a consecutive 90 days’ probation for the count of Accidental Damage to

Unattended Vehicle. Simpson timely filed a notice of appeal and he and the

trial court have complied with Pa.R.A.P. 1925.

                                      II.

      Simpson raises one issue on appeal:         whether the evidence was

sufficient to establish beyond a reasonable doubt that he was the driver of the




                                     -5-
J-S39040-20


gray truck on the night in question.2 He contends that the Commonwealth did

not present any direct evidence that he was the only individual in the gray

truck during the accident or that he was the person who drove the truck into

Mr. Elderton’s vehicle and to his own home thereafter. Thus, he argues that

the evidence was insufficient to establish that he committed DUI and

Accidental Damage to Unattended Vehicle.3

____________________________________________


2 The Commonwealth argues that Simpson’s challenge goes to the weight of
the evidence, not the sufficiency of the evidence, and that he has waived his
weight claim by failing to raise it in the trial court at sentencing or through a
post-sentence motion. A challenge to the weight of the evidence must be
addressed in the first instance by the trial court, and the trial court may grant
a new trial if it determines that “notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.” Commonwealth v. Widmer, 744 A.2d
745, 752 (Pa. 2000) (quotations omitted). This court reviews the trial court’s
decision for an abuse of discretion. Id. In contrast, a challenge to the
sufficiency of the evidence is a question of law that we review de novo. Id.
at 751. “Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.” Id. (citation omitted,
emphasis added). A claim that the Commonwealth failed to establish the
identity of the perpetrator of a crime is a challenge to the sufficiency of the
evidence. See, e.g., Commonwealth v. Jones, 954 A.2d 1194 (Pa. Super.
2008). Thus, we decline to find waiver.
3   Our standard of review is well-settled:

        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 [this] 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



                                           -6-
J-S39040-20


       To sustain a conviction for DUI, the Commonwealth must establish

beyond a reasonable doubt that the accused drove or was in actual physical

control of a motor vehicle while intoxicated; it is not sufficient to establish that

the accused was merely sitting inside a vehicle while intoxicated. 75 Pa.C.S.

§ 3802(c); see Commonwealth v. Brotherson, 888 A.2d 901, 904-05 (Pa.

Super. 2005) (holding that actual physical control of vehicle can be established

by circumstantial evidence even when there are no eyewitnesses to the

defendant’s driving). Similarly, to sustain a conviction for Accidental Damage

to Unattended Vehicle, the Commonwealth must establish that the “driver” of

the vehicle involved in the accident failed to immediately stop and provide his

or her name, address and insurance information to the driver or operator of

the other vehicle. 75 Pa.C.S. § 3745(a). Here, the Commonwealth bore the




____________________________________________


       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. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012) (citation
omitted).


                                           -7-
J-S39040-20


burden of establishing that Simpson was intoxicated and driving the gray truck

at the time it hit Mr. Elderton’s vehicle.

      While “[e]vidence of identification need not be positive and certain to

sustain a conviction,” there must nonetheless be sufficient evidence to

establish beyond a reasonable doubt that the defendant was the perpetrator

of the crime. Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011)

(en banc).        In evaluating the sufficiency of the evidence to support an

identification,

      the court should consider the opportunity of the witness to view
      the criminal at the time of the crime, the witness’ degree of
      attention, the accuracy of [his or her] prior description of the
      criminal, the level of certainty demonstrated at the confrontation,
      and the time between the crime and the confrontation. The
      opportunity of the witness to view the actor at the time of the
      crime is the key factor in the totality of the circumstances analysis.

Com. v. Valentine, 101 A.3d 801, 806 (Pa. Super. 2014) (citation omitted).

When evaluating the credibility of a witness’s identification of the perpetrator,

the fact-finder is entitled to believe all, part or none of the evidence presented.

Lopez, supra. As with any other element of a crime, circumstantial evidence

may be sufficient to establish the identity of a perpetrator. Id.

      Here, the Commonwealth presented sufficient circumstantial evidence

that Simpson was the driver of the gray truck even though none of the

eyewitnesses observed Simpson driving while the truck was in motion. There

is no dispute that Simpson was the registered owner of the vehicle. Through

his investigation, Captain Johnson discovered that Simpson had been drinking


                                       -8-
J-S39040-20


alcohol at a retirement party on the night in question, and that he left the

party approximately one hour before the first 911 call reporting the accident.

Elderton, the owner of the damaged Toyota Avalon, heard a loud bang at the

time of the accident and went to his window in time to see Simpson’s truck

driving away from the scene of the accident. Elderton saw that the gray truck

was damaged and emitting smoke but was still able to leave the scene of the

accident. He left his house to inspect his vehicle and discovered that it had

sustained a significant amount of damage from the gray truck.

      Shortly thereafter, Stevenson heard a loud dragging sound outside of

his house, which was located across the street from Simpson’s home.         He

looked out of his window and saw the gray truck backing into Simpson’s

driveway, and he could see that the truck was missing a front tire. Stevenson

recognized the gray truck as belonging to Simpson. While Stevenson could

not see directly through the windshield to observe the driver of the truck, he

did see Simpson struggling to exit the vehicle. He immediately went outside

to speak with Simpson and he did not see anyone else in the truck or with

Simpson.   As Stevenson and Simpson were neighbors, Stevenson did not

express any hesitation regarding his identification of Simpson and he testified

that they had spoken to each other on prior occasions. Valentine, supra.

Moreover, even though the events took place around midnight, Stevenson

testified that a streetlight illuminated Simpson’s driveway and that he could

see Simpson trying to exit the truck from his bedroom window.


                                     -9-
J-S39040-20


        The Commonwealth also presented testimony from Officer Begany, who

located the gray truck’s missing tire laying in the middle of a road near the

accident scene, and Sergeant Kenny, who observed fluid and gouge marks in

the road leading from the accident scene to Simpson’s home.              Multiple

individuals called 911 to report that a heavily damaged gray truck with a

missing wheel was driving on the nearby streets. Officers were dispatched to

investigate the scene of the accident minutes after it occurred and

immediately began tracking the fluid gouge marks in the road.

        Officer Sides and Captain Panagoplos were the first officers to approach

Simpson’s home, and they knocked on the door for several minutes without

any response. Eventually, Simpson approached them from the back of the

home and they placed him under arrest.             Based on their observations of

Simpson on the night in question and their prior experiences with him, Officer

Sides and Captain Panagoplos believed that Simpson was intoxicated.4 While

at Simpson’s home, officers spoke briefly with Stevenson but none of the

officers testified to seeing any other person at the Simpson residence or near

the gray truck.      Under the totality of the circumstances, this evidence is

sufficient to establish that Simpson was the driver of the gray truck when it

collided with the Toyota Avalon, that he drove the gray truck, despite losing a

tire, back to his home, and that he was intoxicated while doing so. Viewing



____________________________________________


4   A blood test confirmed that Simpson’s BAC was .239.

                                          - 10 -
J-S39040-20


the evidence in the light most favorable to the Commonwealth, the evidence

established beyond a reasonable doubt that Simpson committed the crimes of

DUI and Accidental Damage to Unattended Vehicles.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/20




                                  - 11 -
