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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.                 :
                                        :
FREDERICK EMMANUEL JOYCE,               :          No. 195 MDA 2014
                                        :
                          Appellant     :


        Appeal from the Judgment of Sentence, December 31,2013,
           in the Court of Common Pleas of Cumberland County
             Criminal Division at No. CP-21-CR-0001515-2013


BEFORE: FORD ELLIOTT, P.J.E., PANELLA AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 02, 2015

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Cumberland County following appellant’s conviction for

driving under the influence - general impairment, with refusal, 75 Pa.C.S.A.

§ 3802(a)(1), which resulted in a sentence of incarceration of not less than

90 days nor more than 6 months and a fine of $1,500. We affirm.

      The trial court summarized the relevant factual background of this

matter as follows:

                  On February 11, 2013, Corrections Officer
            Benjamin Miller was on duty securing the exterior of
            the Cumberland County Prison. Notes of Testimony,
            In Re: Transcript of Proceedings Jury Trial,
            October 29-30, 2013 at 29 (hereinafter “N.T. at
               ”). During his rounds, Officer Miller observed a
            black truck drive into the employee parking lot of the
            Cumberland County Prison. N.T. at 33. The only



* Former Justice specially assigned to the Superior Court.
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          access to this parking lot from that direction of travel
          is Claremont Road, a public roadway. N.T. at 62-63.

                Officer Miller approached the driver’s side of
          the vehicle, which was parked across multiple
          parking spaces. N.T. at 35, 86-87. The Defendant,
          Mr. Joyce, was the only person in the vehicle. N.T.
          at 46-47.     When Officer Miller approached the
          vehicle, the Defendant appeared intoxicated based
          on Officer Miller’s observations of slurred speech,
          incoherent story, and boisterous demeanor. N.T. at
          39. After speaking with the Defendant, Officer Miller
          walked into the employee entrance of the building in
          order to locate his supervisor, Corporal Alleman.
          N.T. at 63. At this time, the Defendant had exited
          his vehicle but did not follow Officer Miller into the
          prison. N.T. at 47. Upon returning to his vehicle,
          the Defendant bent down beside the driver’s side of
          his vehicle. N.T. at 96.

                 Officer   Miller  related   the   events     to
          Corporal Alleman,      who   contacted   Cumberland
          County Dispatch to report an intoxicated individual in
          the parking lot of the Prison.         N.T. at 72.
          Officer Miller and Corporal Alleman then returned to
          the parking lot at about the same time that
          Middlesex Township Police Corporal Seibert arrived
          to speak with the Defendant. N.T. at 72-3. Upon
          arriving at the Defendant’s vehicle, Corporal Seibert
          retrieved the vehicle’s keys from the driver’s side
          step bar, the same location the Defendant had been
          observed bending over prior to the Corporal’s arrival.
          N.T. at 96.

                Corporal Siebert, in speaking with the
          Defendant, immediately observed indications of
          intoxication such as red, glassy, and glazed over
          eyes, slurred speech, and a belligerent attitude. N.T.
          at 81. Corporal Seibert informed the Defendant that
          he was suspected of driving under the influence,
          which the Defendant denied.            N.T. at 82.
          Throughout the conversation, [sic] Mr. Joyce
          maintained that a friend had driven him to the
          Prison, however he made inconsistent statements


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            regarding the gender of the friend. Id. cf. N.T. at
            134. Regardless, Corporal Seibert then informed the
            Defendant that there were witnesses and cameras
            that had recorded the Defendant driving, to which
            the Defendant said “okay, then you got me, take me
            to jail.” N.T. at 82.

                  While still in the parking lot, Corporal Seibert
            also smelled a strong odor of alcohol emanating from
            the Defendant, and observed bloodshot glassy eyes,
            slurred speech, and swaying in place as they
            conversed. N.T. at 97. These observations led
            Corporal Seibert to believe that the Defendant was
            unable to safely operate a vehicle. N.T. at 97.
            Corporal Seibert then requested the Defendant to
            submit to a field sobriety test as well as a blood test.
            N.T. at 83-5. The Defendant refused both. N.T. at
            84.

                  Based      on      this     interaction      and
            Corporal Seibert’s observations, the Defendant was
            placed under arrest for Driving Under the Influence.
            N.T. at 86, 96-98. The Defendant was then placed
            into Corporal Seibert’s patrol car and driven to the
            Booking Center of the Prison to be processed. N.T.
            at 86. Once in the Booking Center, and in the
            presence      of    Booking      Agent      Fitzgerald,
            Corporal Seibert again requested the consent of the
            Defendant to obtain a blood sample, using the
            standard PennDOT form DL-26. N.T. at 88. The
            Defendant once again refused. Id. Booking Officer
            Fitzgerald corroborated Corporal Seibert’s version of
            the events that took place inside the Prison in all
            respects. N.T. at 114-16.

Trial court opinion, 4/10/14 at 2-4.

      On October 30, 2013, following a jury trial, appellant was found guilty

of DUI - general impairment, with refusal.       Appellant was sentenced on

December 31, 2013. This timely appeal followed.

      Appellant presents two issues for our consideration:


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            I.     DID   THE  COMMONWEALTH    ESTABLISH
                   BEYOND   A REASONABLE   DOUBT   THAT
                   APPELLANT FREDERICK JOYCE “DROVE” A
                   VEHICLE?

            II.    CAN DECLINING TO GIVE A BLOOD SAMPLE BE
                   A “REFUSAL” WHERE NO REASONABLE BASIS
                   EXISTED TO REQUEST CHEMICAL TESTING
                   WHEN “DRIVING” WAS NOT ESTABLISHED?

Appellant’s brief at 6.

      Appellant’s first issue on appeal challenges the sufficiency of the

evidence, which we consider under a well-accepted standard of review.

            The standard we apply in reviewing the sufficiency of
            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 factfinder 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 a 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. Muniz, 5 A.3d 345, 348 (Pa.Super. 2010) (internal

citations and quotations omitted), appeal denied, 19 A.3d 1050 (Pa. 2011).


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      Section 3802(a)(1) of the Vehicle Code, 75 Pa.C.S.A. §§ 101-9805,

provides:

            (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).         In order to be found guilty of DUI - general

impairment, “the Commonwealth [must] prove the following elements: 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

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

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

      Instantly, appellant admits he was under the influence of alcohol.

(Appellant’s brief at 12.)    Additionally, appellant does not dispute that his

truck traveled on Claremont Road. (Id.) Appellant’s argument centers on

whether the Commonwealth sufficiently established, through evidence and

witness testimony, that appellant was the singular person to operate or be in

“actual physical control of the movement of [his] vehicle” the evening he

encountered Officer Miller making the rounds, and later Corporal Seibert.

(Id. at 12-13.)




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            The term “operate” 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. Our precedent indicates that a combination
            of the following factors is required in determining
            whether a person had “actual physical control” of an
            automobile: the motor running, the location of the
            vehicle, and additional evidence showing that the
            defendant had driven the vehicle. A determination
            of actual physical control of a vehicle is based upon
            the    totality  of    the    circumstances.      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. Williams, 871 A.2d 254, 259 (Pa.Super. 2005)

(internal quotes and citations omitted).

      Appellant attempts to argue that Officer Miller’s (“Miller”) testimony

misidentifies him as the person driving the truck. This argument is without

merit. At trial, Miller testified that he witnessed appellant’s vehicle pull off

Claremont Road and pull into the prison parking lot. (Notes of testimony,

10/29/13 at 31-33.) He further testified that he could see the driver of that

vehicle motioning towards him in an effort to get his attention. (Id. at 31.)

According to Miller, he stopped his security rounds, the vehicle pulled closer

to him, and appellant rolled down the window and told Miller he was looking

for his wife who was previously booked at the facility. (Id.) Miller was then

asked, “Is the driver of that vehicle in court?” He responded, “Yes, sir” and

pointed out appellant. (Id.) Miller’s testimony that appellant was the driver

of the vehicle that pulled into the prison parking lot was unequivocal.


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      Appellant’s attempt to argue that Miller’s testimony was somehow

inconsistent is belied by the record.   While testifying about his encounter

with appellant, Miller was asked:

             [Prosecutor]:   When [appellant] drove into this
             parking area and you encountered [appellant] --

             [Miller]: I approached him from the passenger’s --
             or from the driver’s side of the vehicle.

             Q.   From the driver’s side of the vehicle.

             A.   Yes, sir.

Id. at 35.

      Clearly, Miller corrected himself while he was answering the question.

Whether Miller approached from the driver’s side or the passenger’s side of

the vehicle hardly makes a difference since Miller testified that appellant was

the only occupant of the vehicle and appellant was in the driver’s seat when

the vehicle turned off Claremont Street into the prison parking lot.

      In addition to Miller’s testimony, video surveillance tape corroborated

his testimony by showing that no one else exited the vehicle from the time it

pulled into the parking lot. Viewing the evidence in the light most favorable

to the Commonwealth, as verdict winner, the totality of the evidence was

sufficient to show that appellant exhibited actual physical control over his

vehicle by driving the vehicle into the parking lot and being the only person

in the vehicle throughout the encounter.




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     Next, appellant argues that declining to give a blood sample is not a

“refusal” where no reasonable basis existed to request chemical testimony

when “driving” was not established.     (Appellant’s brief at 19.)   Appellant

concedes that no chemical test occurred after appellant was requested to

submit to one. (Id.) Appellant goes on to state: “Even though he perhaps

imbibed ‘a sufficient amount of alcohol,’ 75 Pa.C.S.A. § 3802(a)(1), the

Commonwealth did not establish he drove, operated, or was in ‘actual

physical control of the movement’ of the truck.” (Id. (emphasis in brief).)

     As we have already determined there was indeed sufficient evidence to

prove appellant was in actual physical control of the vehicle, this second

argument is devoid of any merit.1          Accordingly, we affirm appellant’s

conviction for DUI - general impairment.

     Judgment of sentence affirmed.




1
  We note our review indicates there was sufficient evidence to show
appellant knowingly and voluntarily refused Corporal Seibert’s (“Seibert”)
request for a blood sample. Appellant was placed under arrest and taken to
the booking center in the prison. Seibert testified he requested appellant’s
consent for a blood sample. (Notes of testimony, 10/30/13 at 84-88.)
Seibert read the chemical consent form, DL-26, to appellant in the presence
of Booking Agent Fitzgerald. (Id. at 88.) According to Seibert, appellant
was belligerent, uncooperative, and “talked over” Seibert while he was
reading the form to him. (Id.)


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Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary

Date: 2/2/2015




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