J-S65002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 JASON MATTHEW NOLTEE                      :
                                           :
                     Appellant             :   No. 260 MDA 2018

          Appeal from the Judgment of Sentence January 26, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000240-2017


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY SHOGAN, J.:                        FILED DECEMBER 24, 2018

     Appellant, Jason Matthew Noltee, appeals from the judgment of

sentence entered on January 26, 2018, following his convictions for driving

under the influence (“DUI”). We affirm.

     The trial court summarized the facts of the incident giving rise to this

appeal as follows:

            At trial, the Commonwealth presented the testimony of the
     arresting officer that on November 10, 2016, at about 2:14 a.m.,
     he was on routine patrol and observed a vehicle in the parking lot
     adjacent to a local bar with its brake lights on. The officer testified
     that when he returned ten minutes later, the vehicle was still
     there, the brake lights were still on and three people were
     standing around the vehicle. According to the officer’s testimony,
     he approached the vehicle and observed [Appellant] in the driver’s
     seat with his foot on the brake. The keys were in the ignition, the
     ignition switch was turned to the “on” position and the radio was
     on. The engine was not running. When [Appellant] was unable
     to satisfactorily complete field sobriety tests he was arrested for
     driving under the influence of alcohol.2
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              2The officer testified that three people around the car
              were employees of the bar who had come out to check
              on [Appellant].

Trial Court Opinion, 4/11/18, at 2.

        Appellant was charged with two counts of DUI.1 Following a nonjury

trial on November 1, 2017, Appellant was convicted of both charges.           On

January 26, 2018, he was sentenced to:           incarceration for a minimum of

seventy-two hours and a maximum of six months; a $1,000.00 fine; complete

DUI classroom education, DUI treatment, and thirty-five hours of community

service; and pay costs and fees. Order, 1/26/18, at 1. Appellant filed a notice

of appeal on February 8, 2018, and on February 21, 2018, the trial court

directed Appellant to file a Pa.R.A.P. 1925(b) statement within twenty-one

days of that date. On April 3, 2018, no statement having been filed, the trial

court issued a Pa.R.A.P. 1925(a) opinion, recognizing the lack of a statement,

but allowing Appellant to thereafter file a statement nunc pro tunc. Appellant

filed his Pa.R.A.P. 1925(b) statement, nunc pro tunc, on April 4, 2018. The

trial court filed a supplemental Pa.R.A.P. 1925(a) opinion on April 11, 2018.

        Appellant presents the following issue for our review:

        I.    Was the evidence presented at trial insufficient to prove
              beyond a reasonable doubt that the Appellant had “actual
              physical control” of the vehicle when the vehicle’s location
              did not support an inference that the vehicle had been
              driven and when the Commonwealth failed to present
              additional evidence that the vehicle had been driven prior to
              arrival of the police?
____________________________________________


1   75 Pa.C.S. §§ 3802(a)(1) and (c).

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Appellant’s Brief at 4.

      Appellant argues that he was not in “actual physical control” of his

vehicle, as required for a conviction under 75 Pa.C.S. § 3802. Appellant’s

Brief at 9.   Appellant concedes that he had been drinking at the bar and

became intoxicated.       Id. at 12.   Appellant asserts, however, that he was

“sleeping it off” in the vehicle. Id. He maintains that he had not moved the

vehicle from where it was parked prior to his drinking at the bar, and therefore

he was not in physical control of the vehicle while intoxicated. Id. Appellant

relies on Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994), in

support of his position.     Appellant’s Brief at 11.   Appellant maintains that

Byers put a limit on the definition of “actual physical control” and carved out

a clear exception for instances where an intoxicated person never leaves the

place where they became intoxicated.          Id. at 12.   Appellant argues that

because the record is devoid of any evidence to show that Appellant had driven

his car after drinking at the bar, he was not in actual physical control of the

vehicle, and pursuant to Byers, could not be convicted under 75 Pa.C.S.

§ 3802. Id.

      Our standard of review is as follows:

             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 weigh the evidence and substitute our judgment for
      the fact-finder.   In addition, we note that the facts and

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      circumstances established by the Commonwealth need not
      preclude every possibility of 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. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011).

      A violation for DUI pursuant to 75 Pa.C.S. § 3802(a)(1) is defined as

follows:

      (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. § 3802(a)(1). Section 3802(c) further provides:

      (c) Highest rate of alcohol.--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 0.16%
      or higher 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(c).

      “The term ‘operate’ requires evidence of actual physical control of either

the machinery of the motor vehicle or the management of the vehicle’s

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movement,       but    not    evidence     that   the   vehicle   was   in   motion.”

Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).

       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

citations omitted).

       In applying the above tenets, we conclude that there was sufficient

evidence to convict Appellant of DUI under 75 Pa.C.S. § 3802. The trial court’s

summation of facts is supported by the evidence of record. At 2:14 a.m. on

November 10, 2016, Officer Michael Corter approached a vehicle that was

parked in a lot adjacent to The Finish Line bar with its brake lights illuminated

and three people standing around it. N.T., 11/1/17, at 9. Appellant, the sole

occupant of the vehicle, was seated in an upright position in the driver’s seat.

Id. at 10, 28. Although the engine was not running, the keys were in the

ignition, the ignition was turned to the “on” position, Appellant’s foot was on

the brake, and the radio was on.2 Id. at 10, 29. The trial court pointed out


____________________________________________


2 We note that there is no requirement that the engine must be running in
order for there to be a finding that Appellant was in actual physical control of
the vehicle. See Commonwealth v. Leib, 588 A.2d 922, 926 (Pa. Super.
1991) (court determined that there was sufficient evidence to convict the
defendant of DUI where he was found in parked car with keys in ignition, but
motor was not running).



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that the illuminated brake lights on Appellant’s vehicle are visible on the video

played at trial, which was recorded by Officer Corter’s police vehicle recorder

during the stop.       Id. at 65.     The three individuals around the car were

employees of the bar who had gone outside to check on Appellant’s well-being.

Id. at 13. Appellant was intoxicated.3 Id. at 5, 17-20, and 37. Thus, upon

review of the evidence presented, we conclude that the evidence, when

viewed in the light most favorable to the Commonwealth, is sufficient to

establish that Appellant was in actual physical control of the machinery of the

motor vehicle while intoxicated in violation of 75 Pa.C.S. § 3802(a)(1) and

(c). Johnson, 833 A.2d 260, 263.

       Furthermore, we note that Appellant’s reliance upon Byers is misplaced.

Our Supreme Court abrogated Byers in Commonwealth v. Wolen, 685 A.2d

1384, 1386 n.4 (Pa. 1996). As our Supreme Court explained in reference to

this Court’s holding in Byers:

               In Byers . . . the defendant was asleep behind the wheel of
       a car in the parking lot of a bar with the engine and lights on.
       Although there was some dispute at trial as to whether the car
       had been moved within the parking lot, the defendant had not left
       the parking lot of the bar where he had been drinking. Under the
       circumstances of that case, the Superior Court held that there
       were insufficient facts to prove that the defendant posed a safety
       hazard to the public, and therefore the Commonwealth had failed
       to establish that he was in actual physical control of the vehicle.
       The Byers Court reasoned that penalizing a person for “sleeping
       it off” with the engine running for a purpose other than driving the
____________________________________________


3  The trial court noted:        “[a]t trial, Appellant did not contest the
Commonwealth’s evidence that he was intoxicated; in fact, he emphasized his
state of intoxication in his defense.” Trial Court Opinion, 4/11/18, at 1.

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      vehicle (for example, to provide heat, operate the radio or power
      a car phone) would defeat this laudable purpose.

             However, nowhere in the statute is there a requirement that
      the fact-finder should consider whether or not one in actual
      physical control of a vehicle and under the influence of alcohol or
      controlled substances poses a threat to public safety. The
      legislature has reasonably determined that one driving a motor
      vehicle on the public streets and highways of the Commonwealth
      while under the influence of alcohol or controlled substances
      constitutes a threat to public safety per se, even if there are no
      other members of the public immediately endangered. While it
      may be laudable that one who realizes that he is incapable of safe
      driving pulls over to “sleep it off,” the legislature has made no
      exception to the reach of the statute to such individuals.
      Accordingly, such a person’s threat to public safety is not a
      relevant consideration under the drunk driving statutes.

Wolen, 685 A.2d at 1386 n.4 (internal citations omitted). Thus, contrary to

Appellant’s assertion, Byers does not carve out an exception for instances

where an intoxicated person never leaves the place where he became

intoxicated and does not afford Appellant relief in this case.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2018




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