J-S62031-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

CIERRA NICOLE GEORGE

                            Appellant                    No. 546 WDA 2015


             Appeal from the Judgment of Sentence March 3, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0011848-2014


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                        FILED OCTOBER 14, 2015

        Appellant, Cierra Nicole George, appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas, following

her bench trial convictions for three counts of driving under the influence of

alcohol or a controlled substance (“DUI”), and one count each of reckless

driving, driving vehicle at safe speed, and driving on roadways laned for

traffic.1 We affirm.

        The relevant facts and procedural history of this case are as follows.

On     May   16,    2014,    at   approximately   1:00   a.m.,   Trooper   Roland

Shannonhouse was on routine patrol when he received a dispatch to a hit-

____________________________________________


1
    75 Pa.C.S.A. § 3802(a)(1), (c); 3736(a); 3361; 3309(1), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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and-run crash that occurred near the Squirrel Hill Tunnels in Pittsburgh.

Upon his arrival on the scene, Trooper Shannonhouse saw one vehicle and

the driver of the vehicle.     Trooper Shannonhouse determined a two-car

crash had occurred, but the other driver had fled the scene.

      Meanwhile, Corporal Jonathan Rush, who was also on routine patrol

that morning, received a dispatch to a nearby crash on the ramp of the

Homestead/Squirrel Hill exit off Interstate 376.          The ramp prohibits

pedestrian traffic and serves solely as access for the highway.         Corporal

Rush observed a disabled dark-colored SUV toward the right side of the

ramp. The vehicle was obstructing the lane of travel. Corporal Rush saw

the vehicle had flat front and rear tires and minor damage to the front of the

car; the damage was significant enough to preclude a driver from continuing

to drive the vehicle.   The only other individuals at the scene were two

paramedics and Appellant. Corporal Rush approached Appellant and noticed

she appeared intoxicated.      Specifically, Corporal Rush smelled an odor of

alcohol emanating from Appellant and observed that Appellant was unsteady

on her feet.   Corporal Rush placed Appellant in his patrol car and radioed

Trooper Shannonhouse for assistance.

      When Trooper Shannonhouse arrived on scene, he observed a disabled

vehicle on the ramp of the highway with front-end damage, rear-end

damage,   and    sideswiping    damage    on   the   driver’s   side.   Trooper

Shannonhouse noticed Corporal Rush, two paramedics, and Appellant were


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the only individuals present at the accident site.         Trooper Shannonhouse

spoke with Appellant, and Appellant indicated she was en route to her

residence from a friend’s house. Appellant also said she was unaware she

had hit anything or anyone.       Trooper Shannonhouse saw Appellant’s eyes

were red and bloodshot, and Appellant was unsteady on her feet. Trooper

Shannonhouse also smelled alcohol on Appellant.            Based on her signs of

intoxication, Trooper Shannonhouse suspected Appellant was incapable of

safe driving. Trooper Shannonhouse declined to conduct a field sobriety test

due to the location of the vehicle and insufficient space on the ramp to

perform the test. Trooper Shannonhouse arrested Appellant and transported

her to the hospital for a blood draw. Appellant had a blood alcohol content

(“BAC”) of 0.233%.

      The Commonwealth charged Appellant with DUI and related offenses.

On March 3, 2015, Appellant proceeded to a bench trial. At the conclusion

of trial, the court found Appellant guilty of two counts of DUI—general

impairment, one count of DUI—highest rate of alcohol, and one count each

of reckless driving, driving vehicle at safe speed, and driving on roadways

laned for traffic.

      That day, the court sentenced Appellant to four (4) days at a DUI

alternative to jail program, and a concurrent period of six (6) months’

probation, for Appellant’s DUI—highest rate of alcohol conviction. The court

imposed    no    further   penalties   for   Appellant’s   remaining   convictions.


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Appellant timely filed a notice of appeal on April 2, 2015. On April 8, 2015,

the court ordered Appellant to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). Following a grant of extension,

Appellant timely filed her concise statement on June 25, 2015.

      Appellant raises one issue for our review:

         DID   THE   COMMONWEALTH    PRESENT    SUFFICIENT
         EVIDENCE TO CONVICT [APPELLANT] OF DRIVING UNDER
         THE INFLUENCE OF ALCOHOL?

(Appellant’s Brief at 5).

      When examining a challenge to the sufficiency of evidence:

         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 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), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

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Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

        Appellant states she was not in the vehicle when police arrived on the

accident scene. Appellant argues the Commonwealth presented no evidence

that she was the registered owner of the vehicle.       Appellant asserts the

Commonwealth provided no eyewitness observations of Appellant sitting

behind the wheel of the vehicle or even sitting in the vehicle at all.

Appellant stresses she did not admit she was the driver of the vehicle at any

time.      Appellant emphasizes the Commonwealth failed to present any

witnesses who actually saw Appellant driving the vehicle. Appellant insists

her statements to Trooper Shannonhouse were “vague” and could have

referred to other incidents unrelated to the accident at issue.     Appellant

suggests the probative value of her statements to Trooper Shannonhouse is

weak because she was intoxicated when she made them.                Appellant

contends her mere presence at the scene was insufficient circumstantial

evidence of guilt.   Appellant concludes the Commonwealth’s evidence was

insufficient to establish Appellant had actual physical control of the vehicle

necessary to sustain her DUI convictions, and this Court must reverse her

DUI convictions and vacate the judgment of sentence. We disagree.

        The Vehicle Code defines the offense of DUI, in relevant part, as

follows:

           § 3802.     Driving under influence of alcohol or
           controlled substance

                (a) General impairment.—

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                     (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.

                                  *     *    *

               (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.A. § 3802(a)(1), (c).       The term “operate” as used in the DUI

statute “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.”        Commonwealth v. Johnson,

833 A.2d 260, 263 (Pa.Super. 2003).         Significantly, “an eyewitness is not

required to establish that a defendant was driving, operating, or was in

actual physical control of a motor vehicle. The Commonwealth can establish

through wholly circumstantial evidence that a defendant was driving,

operating or in actual physical control of a motor vehicle.”       Id. (holding

Commonwealth presented sufficient evidence to prove defendant was

driving, operating or in actual physical control of vehicle to sustain his DUI

conviction where police arrived at accident scene and found vehicle located

on travel lane on public street behind second car involved in accident;

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reasonable inference was that defendant drove vehicle to scene; vehicle did

not suddenly emerge from nowhere onto travel lane of public street behind

another car that had just been rear-ended; additionally, police arrived on

scene within short time and saw only defendant and occupants of second

car, who were still seated in second car; police also observed defendant

leaning against driver’s side door of vehicle).

      Instantly, the trial court analyzed Appellant’s sufficiency challenge as

follows:

           It is early in the morning on May 16, 2014. [Corporal]
           Jonathan Rush’s radio crackles with a new call—crash
           westbound      on     376.        He    responds   to    the
           Homestead/Squirrel Hill exit ramp on the downtown
           Pittsburgh side of the Squirrel Hill tunnel. There is a dark
           colored SUV…disabled right in the only lane of travel. It
           cannot be driven as its tires were flat. There was some
           minor damage to the front. A paramedic vehicle is there
           along with [two] medics. Another person is also there—
           [Appellant].    [Corporal] Rush approached her.          She
           smelled of alcohol. She was not steady on her feet.
           [Corporal] Rush detained her by putting her in the back
           seat of his patrol car and called for help.

           Help arrived in the form of Trooper Shannonhouse. He
           saw [Appellant] and a vehicle parked in the middle of the
           one lane exit ramp. He approached [Appellant]. She told
           [Trooper] Shannonhouse that “she was [en] route to her
           residence coming from a friend’s home on the North Side.”
           [N.T. Trial, 3/3/15, at 22.] She then added that “she was
           unaware that she had hit anything or anyone.” [Id.] She
           was then removed from that patrol car and escorted back
           to [Trooper] Shannonhouse’s vehicle.        This transfer
           allowed him to make certain observations. Her walk was
           unsteady. There was a strong odor of alcohol about her.
           Her eyes were red and bloodshot. The dynamics of the
           scene contributed to the lack of field sobriety exercises.
           Within 20 minutes, she was taken from the scene and

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        entered a hospital for a blood draw. That was done and
        the results showed her blood alcohol level to be [0.233%].

        As we all know, circumstantial evidence is based upon
        inferences from established facts. A fair and reasonable
        inference to be drawn is that [Appellant] was driving the
        vehicle…. When police arrive they see a car in the middle
        of an exit ramp that can’t be driven away. It will need [to
        be] towed.    There is one person there who is being
        attended to by paramedics. That person is approached
        and asked what happened. Her response [implies] that
        she was driving the now disabled car. …

(Trial Court Opinion, filed July 21, 2015, at 2-3).     Additionally, at the

conclusion of trial, the court expressly stated it found Corporal Rush and

Trooper Shannonhouse’s testimony credible.    We see no reason to disrupt

the court’s determination as fact-finder. See Hansley, supra. Viewed in

the light most favorable to the Commonwealth as verdict-winner, the

evidence was sufficient to prove Appellant was driving, operating, or in

actual physical control of the vehicle to sustain her DUI convictions.   See

id.; Johnson, supra; 75 Pa.C.S.A. 3802(a)(1), (c). Accordingly, we affirm.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2015


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