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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NYIVA K. MUINDE                            :
                                               :
                       Appellant               :   No. 1626 EDA 2017

         Appeal from the Judgment of Sentence Entered April 13, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0007454-2015


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED JUNE 26, 2018

        Nyiva Muinde appeals from the judgment of sentence entered on April

13, 2017, after the trial court found her guilty of driving under the influence

of alcohol or controlled substance (“DUI”).1 Muinde contends that there was

insufficient evidence to support the trial court’s guilty verdict. We affirm.

        The following evidence was presented at trial. On October 11, 2015,

Officer Michael Golden was working for the Eddystone Borough Police

Department. N.T., Trial, 4/13/17, at 7-8. By 2015, Officer Golden had eight

years of experience as a police officer, ten years of experience as a part-time

Emergency Medical Technician (“EMT”), and five years of experience as a Red

Cross instructor in emergency medical services. Id. While on patrol on October

____________________________________________


*    Former Justice specially assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(a)(1).
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11, 2015, at around 11:20 p.m., he noticed a gray Honda sedan in a

McDonald’s parking lot. Id. at 8-9. Traffic passes through the lot in one

direction only. Id. at 9. The vehicle was parked across two parking spaces and

was facing against the flow of traffic. Id. The operator of the vehicle, Muinde,

was slumped over the steering wheel, with her head almost touching the

steering wheel. Id. at 9. It looked to Officer Golden as though she was

sleeping. Id. The vehicle was running with the transmission in “drive,” the

headlights on, and the radio playing very loudly. Id. at 18.

      Officer Golden approached the vehicle and tried to wake Muinde up by

first announcing himself and then reaching through the partially opened

window to shake her. Id. at 9. Muinde abruptly awakened and told Officer

Golden that she was going home. Id. Officer Golden asked Muinde to place

the vehicle in “park.” Id. Muinde complied, and Officer Golden asked her

multiple times to turn the radio down. Id. at 10. Muinde in response “would

lean up almost like she was going to turn the radio down but then she would

put her hand back down.” Id. She tried again but still did not turn the radio

down. Id. Officer Golden asked Muinde for her identification and proof of

insurance, which she fumbled to find for several minutes. Id. Officer Golden

also detected an odor of alcohol coming from the vehicle. Id.

      Based on his observations of Muinde, Officer Golden asked Muinde to

get out of her vehicle, on suspicion of driving under the influence. Id.




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Lieutenant Pretti2 arrived on scene to conduct two field sobriety tests. Id. at

11. Muinde was asked to perform only two sobriety tests because she had a

cast on her foot. Id. at 13. She failed both tests. Id. at 14-16. Lieutenant

Pretti asked Muinde to perform the ABC’s test and instructed her to say the

alphabet starting with the letter G. Id. at 22. Muinde was “unable to state

from letter G to H and then J.” Id. at 15. Additionally, she continually asked

Officer Golden, “What letter again?” Id. Next, Lieutenant Pretti asked Muinde

to perform the fingertip test, in which she was to put her hand out and count

from one to five while touching her fingertips with her thumb. Id. at 15-16.

During this test, Muinde “kept asking [Officer Golden] to repeat the test and

would not touch her fingers in the order that was told.” Id. at 16.

        Officer Golden also attempted to administer a portable breath test. Id.

However, Muinde was not able to perform this test either. Officer Golden

explained how a portable breath test works and why Muinde was unable to

perform the test:

             Q: . . . What do you have to do to pass that test or to
        administer that test?

              A: You have to breathe into the tube for it to register.
        [Muinde] was instructed [to] breathe in the machine like you’re
        blowing up a balloon and she refused to do so and she kept asking
        how do you blow up a balloon.

              Q: And is that ---

              A: She would bite down --- I’m sorry.

____________________________________________


2   Lieutenant Pretti’s first name does not appear in the record.

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               Q: I’m sorry. Go ahead.

              A: She would bite down on the straw. She would suck in
         when she was told to breathe out.

Id. at 16-17.

         Muinde admitted to Officer Golden that she had drunk one beer and he

found one unopened bottle of beer in her purse. Id. at 13-14. Overall, Officer

Golden observed that Muinde had a strong odor of alcohol on her breath, her

eyes were bloodshot and glassy, her speech was slurred, her pupils were

constricted, and she was uncooperative. Id. Based on his observations, Officer

Golden concluded that Muinde was not capable of operating the vehicle. Id.

at 19.

         Muinde testified that she was a Type 1 diabetic and when her sugar level

gets too high it causes her to go into a comatose-like state. Id. at 28, 30. She

testified that she was parked in the McDonald’s parking lot because she could

feel herself having symptoms of high-sugar level. Id. at 30-31. She did not

recall when Officer Golden approached her vehicle but testified that she was

having a diabetic attack when she was speaking with Officer Golden. Id. at

31. She also testified that she performed the field sobriety tests satisfactorily.

Id. at 33. Officer Golden testified that he did not attribute any of his

observations of Muinde to her diabetes based on his experience as an EMT

and working for Red Cross. Id. at 23.

         The trial court found Muinde guilty of the above charge and sentenced

her to five days to six months’ incarceration. She was ordered to pay a $300

fine and $100 in court costs, to complete a safe driving class program, and to

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undergo a prescreening evaluation for DUI offenders, as well as drug and

alcohol evaluations. This timely appeal followed.

      Muinde presents one issue for our review:

      I.    Whether the evidence was insufficient to support the
            learned trial court’s verdict of guilty of the charge of driving
            under the influence of alcohol because the Commonwealth
            did not prove beyond a reasonable doubt that [Muinde] did
            drive, operate[,] or [was] in actual physical control of the
            movement of a vehicle after imbibing a sufficient amount of
            alcohol such that [Muinde] was rendered incapable of safely
            driving, operating[,] or being in actual physical control of
            the movement of [Muinde’s] vehicle?

Muinde’s Br. at 6 (suggested answer omitted).

      Because Muinde raises a challenge to the sufficiency of the evidence,

our standard of review “requires that we evaluate the record ‘in the light most

favorable to the verdict winner giving the prosecution the benefit of all

reasonable inferences to be drawn from the evidence.’” Commonwealth v.

Rahman, 75 A.3d 497, 500 (Pa.Super. 2013) (quoting Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000)). “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. (quoting Commonwealth v. Brewer, 876 A.2d 1029, 1032

(Pa.Super. 2005)).

      To support a conviction under Section 3802(a)(1), the Commonwealth

must prove “the accused was driving, operating, or in actual physical control

of the movement of a vehicle during the time when he or she was rendered



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incapable    of   safely   doing    so   due   to   the   consumption   of   alcohol.”

Commonwealth v. Teems, 74 A.3d 142, 145 (Pa.Super. 2013) (quoting

Commonwealth v. Segida, 985 A.2d 871, 879 (Pa. 2009)). The type of

evidence that may satisfy this burden includes but is not limited to: “the

offender’s actions and behavior, including manner of driving and ability to pass

field sobriety tests; demeanor, including toward the investigating officer;

physical appearance, particularly bloodshot eyes and other physical signs of

intoxication; odor of alcohol, and slurred speech.” Segida, 985 A.2d at 879.

       Muinde contends that the Commonwealth’s evidence regarding her

actual physical control of the vehicle was limited to “a sleeping driver with her

car in park.” Muinde’s Br. at 12. Muinde claims “the record does not represent

that [Muinde’s] vehicle was running” or contain “evidence of any lights on the

car that were illuminated.”        Id.

       This is a misrepresentation of the facts of this case.3 Contrary to

Muinde’s assertions, Officer Golden’s trial testimony clearly reflects that

Muinde’s vehicle was in “drive,” not “park” and that the officer asked her to

place it in “park.” N.T., Trial, 4/13/17, at 18. Additionally, there was evidence

that Muinde’s vehicle was running and that the headlights were on. Id. Thus,

the record supports the trial court’s conclusion that “the Commonwealth

proved the first element by eliciting uncontroverted testimony from Officer
____________________________________________


3 Muinde also cites old case law, Commonwealth v. Byers, 650 A.2d 468
(Pa.Super. 1994), contending that it controls in this case. See Muinde’s Br. at
14. Our Supreme Court abrogated Byers in Commonwealth v. Wolen, 685
A.2d 1384, 1386 n.4 (Pa. 1996).

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Golden that he encountered [Muinde] seated in the driver’s seat of her vehicle

with the engine running and in gear.” Trial Court Opinion, filed 1/24/18, at 2;

see Commonwealth v. Williams, 871 A.2d 254, 261 (Pa.Super. 2005)

(holding that evidence was sufficient to prove actual physical control of vehicle

where defendant was found in his car at 4 a.m., with his head on steering

wheel, headlights on, radio on, engine running, and vehicle parked diagonally

across two parking spots).

      Next, Muinde contends that the “impairment evidence offered by the

Commonwealth [was] weak and boilerplate.” Muinde’s Br. at 15. Muinde

claims that Officer Golden’s use of “magic words” such as glassy eyes and

slurred speech, and her failure of two field sobriety tests was insufficient to

support Muinde’s conviction, where Muinde “had been sleeping for an

unknown period of time and her testimony about the onset of diabetic

symptoms went unchallenged.” Id. This argument might be correct if we were

to look at only a portion of the trial record. However, we must look at the

record as a whole and consider the evidence that the trial court actually

received. See Commonwealth v. Rodriguez, 673 A.2d 962, 965 (Pa.Super.

1996) (concluding that when appellate court is presented with challenge to

sufficiency of evidence, it must evaluate entire trial record and consider all

evidence actually received).

      When we look at the whole record, the evidence was plainly sufficient.

While there was no testimony presented to rebut Muinde’s testimony that she

had diabetes, the trial court found Muinde’s testimony that she was having a

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diabetic attack not credible. Trial Court Opinion, filed 1/24/18, at 3. Instead,

the trial court found that the Commonwealth “presented overwhelming

evidence that [Muinde’s] intoxicated state was created by her consumption of

alcohol, and that, as a result, she was incapable of safely operating the vehicle

which she controlled.” Id. The trial court found that Muinde’s impairment was

evidenced by Officer Golden’s observations of Muinde’s glassy, bloodshot

eyes; her slurred speech; the strong odor of alcohol on her breath; her vehicle

being parked the wrong way; her uncooperative demeanor; and her failing

both field sobriety tests. Id. Therefore, on this record, we cannot say that

there was insufficient evidence to support the trial court’s guilty verdict. See

Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa.Super. 2000) (concluding

that evidence of defendant’s glassy, bloodshot eyes, odor of alcohol, difficulty

walking, and failed field sobriety tests was sufficient to sustain conviction for

DUI).

        Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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