J-S91016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA


                       v.

BIEU DANG NGUYEN

                            Appellant                        No. 913 MDA 2016


              Appeal from the Judgment of Sentence April 4, 2016
               in the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0006716-2015


BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY RANSOM, J.:                             FILED FEBRUARY 14, 2017

        Appellant, Bieu Dang Nguyen, appeals from the judgment of sentence

entered April 4, 2016. We affirm.

        On July 27, 2015, at approximately midnight, Jessica Kortwright was

driving on Route 743. See Notes of Testimony (N. T.), 4/4/16, at 5-6. She

noticed a car driving erratically in the right shoulder of the road. Id. at 6-8.

Ms. Kortwright followed the car for about twenty minutes and called 911

with the car’s license plate number.           Id. at 5-7.   Ms. Kortwright stopped

following the car when it turned into the Hollywood Casino. Id. at 6.

        Tomas Diaz-Garced, security supervisor at Hollywood Casino, received

a dispatch from the Pennsylvania State Police concerning a possibly

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S91016-16



intoxicated guest.   Id. at 12-13. Security footage showed the car turning

into the casino and parking. Id. at 14-15, 20-21. Mr. Diaz-Garced went to

the parked car, where he observed Appellant sleeping in the driver’s seat.

Id. at 15-16.    The engine was running and the windshield wipers were

activated.   Id. at 15.   Mr. Diaz-Garced knocked on the car window and

attempted to rouse Appellant. Id. at 16. Appellant smelled of alcohol, his

eyes were glassy, his speech was slurred, and he had trouble balancing. Id.

at 17-18. Mr. Diaz-Garced called the police. Id. at 23.

      Corporal Kevin Shanahan of the Pennsylvania State Police arrived on

the scene. Id. at 25-26. He noted that the car was registered to the same

address as the address on Appellant’s license.       Id.   Corporal Shanahan

observed that Appellant had parked across parking lines, smelled strongly of

alcohol, had red, bloodshot, and glassy eyes, and was unsteady on his feet.

Id. at 33. Appellant informed Corporal Shanahan that he had had two to

three drinks before leaving a birthday party in Lancaster.     Id.   Corporal

Shanahan had Appellant perform a field sobriety test, which he had difficulty

completing; Appellant also could not complete an Alco-Sensor test. Id. at

35-38.   Corporal Shanahan placed Appellant under arrest for suspicion of

driving under the influence of alcohol. Id. at 39-40. Appellant agreed to a

blood draw, and his BAC was .110 percent. Id. at 43-45.

      Appellant testified that his mother drove him to the casino, and went

inside while he slept in the car.   Id. at 52-53.    Appellant stated that he

chose to sleep in the driver’s seat because it reclined. Id.

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        The trial court convicted Appellant of driving under the influence (DUI)

- general impairment, DUI – high rate of alcohol, and careless driving.1

Appellant was sentenced to not less than forty-eight hours and not more

than six months of incarceration and undergo a drug and alcohol evaluation.

Appellant timely filed post-sentence motions, which were denied.

        Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.            The trial court filed a

responsive opinion.

        On appeal, Appellant raises a single issue:

        Whether the trial court erred in denying Appellant’s post-
        sentence motion where Appellant’s conviction was against the
        weight of the evidence so as to shock one’s sense of justice
        where Appellant did not engage in acts which constitute the
        offense of which he was convicted?

Appellant’s Brief at 4.

        Appellant argues that he was not driving the vehicle that he was found

sleeping in, and no one who was called to testify for the Commonwealth

testified that they saw Appellant driving while under the influence.       See

Appellant’s Brief at 10. Appellant argues that his conviction was against the

weight of the evidence, because although there was surveillance video of the

car pulling into the casino, there was a ten minute video blackout between

that time and the supervisor’s arrival. Id. at 11-13.
____________________________________________


1
    75 Pa.C.S. §§ 3802(a)(1), 3802(b), and 3714(a), respectively.



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      The law regarding weight of the evidence claims is well-settled.

      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 witnesses, 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, 1135-1136 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant was convicted of DUI – high rate of alcohol. The elements of

that offense are:

      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 alcohol concentration in the
      individual's blood or breath is at least 0.10% but less than
      0.16% within two hours after the individual has driven, operated
      or been in actual physical control of the movement of the
      vehicle.

75 Pa.C.S. § 3802(b).      The term “operate” requires evidence of actual

physical control of the vehicle based upon a totality of the circumstances.

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

Factors that may be considered include the motor running, location of the

vehicle, and additional evidence showing a defendant has driven the vehicle.

See Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (1995).                   The


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Commonwealth may establish actual physical control through wholly

circumstantial evidence. See, e.g., Commonwealth v. Johnson, 833 A.2d

260 (Pa. Super. 2003) (collecting cases standing for proposition that

Commonwealth may establish by totality of circumstances, defendant was

driving, operating or in actual physical control of motor vehicle); see also

Commonwealth v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005)

(finding that appellant had actual physical control of vehicle where police

discovered vehicle parked diagonally and appellant was asleep in the driver’s

seat with the engine running, and failed sobriety tests).

      In the instant case, the trial court found the evidence supported all

elements of the statute.      It found credible Ms. Kortwright’s testimony

regarding Appellant’s driving and rejected Appellant’s assertion that his

mother had driven him to the casino.     See Houser, 18 A.3d at 1136. In

reaching this conclusion, the court noted the short time between the car

pulling into the casino and the security supervisor approaching the car, as

well as Appellant’s failure to pass field sobriety or blood analysis tests.

Appellant was the sole person in the car.     Thus, the court concluded that

Appellant had driven the car and not his mother.

      We see no abuse of discretion in this conclusion and, accordingly,

affirm. See Houser, 18 A.3d at 1136.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2017




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