J-S79027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANIEL BOMBARO,

                            Appellant                  No. 932 EDA 2014


           Appeal from the Judgment of Sentence of March 12, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014488-2013


BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED JANUARY 28, 2015

       Appellant, Daniel Bombaro, appeals from the judgment of sentence

entered on March 12, 2014, following his bench trial convictions for three

counts of driving under the influence (DUI) of alcohol, a controlled

substance, and a combination of a controlled substance and alcohol.1 Upon

review, we affirm.

       The trial court aptly summarized the facts of this case as follows:

              In response to a radio call, on April 18, 2013 at
          approximately 6:46 [p.m.] [in] the area of 429 West
          Susquehanna Avenue, Officer Nelson Leon observed
          [Appellant] inside a white Honda Sonata. Susquehanna
          Avenue is a large one lane street, and [Appellant] was
          parked to the right side of the street against the curb. The
          car was parked at an angle facing towards the street with
____________________________________________


1
    75 Pa.C.S.A. §§ 3802(a)(1), (d)(1), and (d)(3), respectively.



*Retired Senior Judge assigned to the Superior Court.
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        the windows rolled up. The keys were in the ignition and
        the car was running. [Appellant] was behind the driver’s
        seat, unconscious, and slumped over towards the
        passenger’s seat. He was also sweating profusely. Inside
        the car, Officer Leon observed a syringe wrapper in
        [Appellant’s] hand and also a needle on the floor of the
        passenger side. [Appellant] failed to wake up even after
        Officer Leon knocked on the window a couple of times.
        Officer Leon then opened the door and shook him to wake
        him up. However, [Appellant] did not wake up until the
        medics came.

            Once [Appellant] woke up, Officer Leon asked him a few
        questions, but [Appellant] had trouble answering them. His
        speech was slurred and muffled. Officer Leon then asked
        him if he consumed drugs or alcohol, and [Appellant]
        informed the [o]fficer that he had used heroin earlier that
        day. [Appellant] was unable to maintain his balance after
        he exited the vehicle and needed the support of Officer Leon
        to remain standing. At that point, he was placed under
        arrest for DUI.

Trial Court Opinion, 6/16/2014, at 1-2.

      Procedurally, the case progressed as follows:

            On March 12, 2014, [Appellant] was found guilty of [the
        aforementioned counts of DUI]. He was sentenced to 72
        hours to 6 months of incarceration, and was further ordered
        to participate in drug or alcohol screening and treatment
        programs, including outpatient and inpatient programs. His
        license was suspended for a year, and he was ordered to
        participate in Highway Safety School.       [Appellant] was
        paroled immediately after serving 72 hours.

            Defense counsel filed a timely appeal on March 28,
        2014. [On May 14, 2014, the trial court ordered Appellant
        to file a concise statement of errors complained of on appeal
        pursuant to Pa.R.A.P. 1925(b).] [Appellant’s] [s]tatement of
        [e]rrors complained [of] on [a]ppeal was filed on June 3,
        2014.      [The trial court issued an opinion pursuant to
        Pa.R.A.P. 1925(a) on June 16, 2014.]

Id. at 1.


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      On appeal, Appellant presents the following issue for our review:

        Was not the evidence insufficient to convict [A]ppellant of
        driving under the influence of a controlled substance where
        the Commonwealth failed to prove that [A]ppellant had
        actual, physical control of the vehicle?

Appellant’s Brief at 3.

      Appellant claims that there was insufficient evidence presented to

prove he was in physical control of the vehicle in question. More specifically,

he claims:

        [T]here was a reasonable inference that [A]ppellant did not
        drive to the area under the influence, but rather drove to
        the area sober, bought drugs in the neighborhood, and
        returned to the car where he ingested the drugs in his car,
        as evidenced by the syringe found in his hand and the
        needle found in the car.

Id. at 14. Appellant contends that the fact that he “started the parked car,

without more, [was] not enough to prove actual physical control.” Id. at 12.

Appellant relies upon our 1994 decision in Commonwealth v. Byers, 650

A.2d 468 (Pa. Super. 1994) for the proposition that the car’s location

negated any inference that the car had been moved. Id. at 13-14.

      When reviewing a sufficiency of the evidence claim, 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 circumstances established by the

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        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
        finder 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. Karns, 50 A.3d 158, 161 (Pa. Super. 2012) (citation

omitted).

     Appellant was convicted of three counts of DUI. The relevant statutory

provisions provide:

        (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.

                           *         *           *

        (d) Controlled substances.--An individual may not drive,
        operate or be in actual physical control of the movement of
        a vehicle under any of the following circumstances:

        (1)   There is in the individual's blood any amount of a:

        (i)      Schedule I controlled substance, as defined in the
                 act of April 14, 1972 (P.L. 233, No. 64), known as
                 The Controlled Substance, Drug, Device and
                 Cosmetic Act;




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        (ii)      Schedule II or Schedule III controlled substance,
                  as defined in The Controlled Substance, Drug,
                  Device and Cosmetic Act, which has not been
                  medically prescribed for the individual; or

        (iii)     metabolite of a substance under subparagraph (i)
                  or (ii).

                           *         *           *

        (3) The individual is under the combined influence of alcohol
        and a drug or combination of drugs to a degree which
        impairs the individual's ability to safely drive, operate or be
        in actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802 (footnote omitted). There is no dispute that heroin is a

controlled substance covered under Subsection 3802(d).

      Here, Appellant contends that there was insufficient evidence that he

was operating, or in physical control of, the vehicle in question. Our Court

has determined:

              The term “operate” requires evidence of actual
        physical control of the vehicle to be determined based upon
        the totality of the circumstances. 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. The Commonwealth can establish
        that a defendant had “actual physical control” of a vehicle
        through wholly circumstantial evidence.

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

omitted).

      Our decision in Commonwealth v. Toland, 995 A.2d 1242 (Pa.

Super. 2010) is instructive. In that case,




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       the evidence established that [Toland] was asleep in the
       driver's seat of the vehicle with the motor running and the
       headlights illuminated. There was a cold, unopened six-pack
       of beer on the floor behind the driver's seat. [Appellant’s car
       was found, as] described in the affidavit of probable cause
       [parked in front of] a “store” and there is no indication that
       it sells alcoholic beverages. A reasonable inference could be
       made that [Toland] drove to that location. Although
       circumstantial, the evidence was sufficient for the trial court
       to conclude, as the finder of fact, that [Toland] was in
       actual physical control of the movement of the motor
       vehicle.

Toland, 995 A.2d at 1246.

     Moreover, in Toland, we distinguished our earlier decision in Byers:

           In [Byers], [Byers] was discovered sleeping in the
       driver's seat of a parked car. The car was sitting in the
       parking lot of the Twin Rocks Lounge, a drinking
       establishment. The engine was running and the headlights
       were on, but the car was not in motion. On these facts, a
       panel of this [C]ourt held that the Commonwealth did not
       introduce enough evidence to show actual physical control.
       We held that the Commonwealth must show some
       additional facts to demonstrate that an intoxicated
       defendant is a danger to public safety beyond merely
       starting a parked car. After noting that the purpose of the
       drunk driving laws is to keep intoxicated drivers off of the
       road and to protect the public at large, the Byers court
       stated: “In the present case, Byers never got onto the road
       and was not a threat to public safety. The Commonwealth is
       trying to encourage intoxicated people to ‘sleep it off’ before
       attempting to drive, yet it wants us to punish Byers for
       doing just that.” [Byers,] at 471.

            While not overruled, the approach in Byers was strongly
       criticized by the Pennsylvania Supreme Court in
       Commonwealth v. Wolen, 685 A.2d 1384 (Pa. 1996)
       (plurality):

          Under the circumstances of [Byers], the Superior
          Court held that there were insufficient facts to prove
          that the defendant posed a safety hazard to the

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          public, and therefore the Commonwealth had failed
          to establish that he was in actual physical control of
          the vehicle. Byers, 650 A.2d at 470. The Byers
          Court reasoned that penalizing a person for “sleeping
          it off” with the engine running for a purpose other
          than driving the vehicle (for example, to provide
          heat, operate the radio or power a car phone) would
          defeat this laudable purpose. Id. at 471. 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. Although Wolen, as a
       plurality decision, is not binding on this court, the
       soundness of the reasoning in Byers has been called into
       question.

              At any rate, Byers is distinguishable on its facts [from
       Toland]. In [Byers], the defendant had not moved his car
       from the private parking lot of the bar where he had been
       drinking. Byers, 650 A.2d at 470. [In Toland], the
       defendant was parked on a public street in front of a store.
       While it is unclear from the record where [Toland] had been
       drinking prior to his arrest, appellant was not sitting in the
       parking lot of a bar, as in Byers. As the trial court states,
       the presence of a cold, unopened six-pack of beer in
       [Toland’s] car indicates that he was not “sleeping it off” but
       intended to drive his vehicle to his home or some other
       location to continue drinking and become even more

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          intoxicated. Assuming Byers remains good law, it is
          factually inapposite and [Toland’s] reliance on it is
          misplaced [and his] sufficiency claim fails.

Commonwealth v. Toland, 995 A.2d 1242, 1246-47 (Pa. Super. 2010)

(some citations and quotations and original brackets omitted).

      In this case, the trial court concluded that Appellant was in actual

physical control of the vehicle, opining:

              Under the totality of the circumstances, [Appellant] was
          clearly in “actual physical control” of the vehicle. Officer
          Leon found [Appellant] unconscious and slumped over
          towards the passenger side of the vehicle. [Appellant]
          parked the car in a high drug area, with the keys in the
          ignition and the car running. The car was parked at an
          angle instead of being parked straight against the curb. As
          [precedent indicates], when the location of the vehicle is in
          a suspect location, a red flag is to be raised. [Appellant]
          even testified that he pulled off after an emotional situation
          with his former wife and was going through Northern
          Liberties, which is an area in Philadelphia.              The
          circumstantial evidence does not support the idea that
          [Appellant] sat in a parked car there just to “cool off” after
          a heated argument. Instead, all evidence points to the
          conclusion that he was driving under the influence before he
          decided to park.

Trial Court Opinion, 6/16/2014, at 5 (footnote and record citations omitted).

      Initially we note that in the case sub judice, Appellant argues the facts

in the light most favorable to himself, in contravention of our standard of

review.    Moreover, the facts of this case more closely resemble those as

presented in Toland, rather than Byers. Appellant was found unconscious

behind the wheel of a car, the engine was running, and the car was parked

slightly askew on the street in a residential neighborhood.      In Byers, the

facts presented showed Byers had been imbibing in alcohol in a particular

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location and had passed out before moving his car from the drinking

establishment’s parking lot. Here, however, as in Toland, it is unclear from

the record where Appellant partook of the heroin. However, based upon the

totality of the circumstances viewed in the light most favorable to the

Commonwealth as the verdict winner, we agree that there was sufficient

evidence to support Appellant’s convictions. More specifically, the car was

parked at a slight angle on a city street with the engine running and

Appellant was found unconscious in the driver’s seat. See N.T., 3/25/2014,

at 11, 13-14. Appellant had a syringe wrapper in his hand and there was a

hypodermic needle found on the floor of the rear passenger side. Id. at 16-

17. Appellant admitted to using heroin earlier that day. Id. at 11. Unlike in

Byers, here there was no reliable indicia that Appellant used intoxicating

substances and merely got into the vehicle to sleep it off. Thus, we agree

with the trial court that there was sufficient evidence to support Appellant’s

DUI convictions.

      In addition, we note that at trial Appellant stipulated that his blood

alcohol level showed he was intoxicated.          Id. at 20-21.      There was

absolutely no evidence to suggest that Appellant had imbibed any alcohol

after parking his vehicle. The investigating officer did not testify to seeing or

recovering any open or empty containers from the vehicle. Accordingly, the

Commonwealth circumstantially proved that Appellant ingested alcohol

before driving.    Thus, for this alternative reason, we affirm Appellant’s

general impairment conviction under 74 Pa.C.S.A. § 3802(a)(1). See

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Commonwealth v. O'Drain, 829 A.2d 316, 322 (Pa. Super. 2003) (“We

note that this court may affirm the decision of the trial court if there is any

basis on the record to support the trial court's action; this is so even if we

rely on a different basis in our decision to affirm.”).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2015




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