J-S52016-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MIA GROOMS

                            Appellant                No. 2305 EDA 2015


          Appeal from the Judgment of Sentence Entered July 9, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0007923-2014


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 19, 2016

        Appellant Mia Grooms appeals from the July 9, 2015 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County (“trial

court”), following her bench conviction for driving under the influence

(“DUI”) in violation of 75 Pa.C.S.A. § 3802(d)(1)(iii) and (2). Upon review,

we affirm.

        The facts and procedural history underlying this case are undisputed.1

On October 16, 2011, at approximately 1:45 a.m., Inspector David Bellamy

of the Philadelphia Police Department observed a traffic jam in the area of

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Unless otherwise specified, these facts come from the trial court’s
December 21, 2015 opinion.
J-S52016-16



2200 West Ontario Street in Philadelphia. At that time, he observed a white

Mitsubishi Galant parked against the flow of one-way traffic.        Several

vehicles were honking as they attempted to get past the parked Mitsubishi

on the narrow one-way street. Inspector Bellamy observed Appellant near

the driver’s area of the Mitsubishi.      Appellant was stumbling.     When

Inspector Bellamy approached Appellant, she appeared hazy and her eyes

glassy.   The keys were in the ignition and the Mitsubishi was running.

Appellant failed to fully cooperate with Inspector Bellamy.   Appellant then

reached inside the Mitsubishi through the open driver’s side door, took a cup

from the center console, and poured out its contents on the road. Inspector

Bellamy called for backup. Officer Michael McCormick responded.

      Officer McCormick approached Appellant as she was sitting in the

driver’s seat of the Mitsubishi and asked her to step outside.        Officer

McCormick testified “I asked her to step out. She was basically nonverbal,

could barely stand, had trouble—swaying or sagging, however you want to

call it, and she was—we had to direct her to lean up against another vehicle

to keep her from falling on the ground.” Trial Court Opinion, 12/21/15 at 5

(record citations omitted).

      Appellant eventually was charged with and convicted of the above-

mentioned DUI offenses and sentenced to 12 to 24 months’ imprisonment




                                    -2-
J-S52016-16



under Subsection 3802(d)(1)(iii) and 24 months’ probation for Subsection

3802(d)(2).2

       On appeal, Appellant raises two issues for our review. First, Appellant

argues that the evidence was insufficient to sustain her conviction under

Subsection       3802(d)(1)(iii)       (controlled   substance)   because    the

Commonwealth failed to establish that she operated or was in physical

control of the movement of the Mitsubishi.3 Second, Appellant argues that
____________________________________________


2
 We observe that Appellant had multiple prior DUIs. See N.T. Sentencing,
5/19/15 at 7.
3
 “A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

       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
       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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).



                                           -3-
J-S52016-16



her sentences under Subsections 3802(d)(1)(iii) and 3802(d)(2) should

merge for sentencing purposes.

      With respect to Appellant’s sufficiency of the evidence claim, after

careful review of the record, and the relevant case law, we conclude that the

trial court accurately and thoroughly addressed the issue on appeal.        See

Trial Court Opinion, 12/21/15, at 8-12. Accordingly, Appellant is not entitled

to relief on this issue.

      Appellant next argues that trial court erred in sentencing her both

under Subsections 3802(d)(1)(iii) and 3802(d)(2) because her sentences

should have merged. We disagree.

      Appellant’s merger claim implicates the legality of sentence and thus

our standard of review is de novo and the scope of review is plenary. See

Commonwealth v. Collins, 764 A.2d 1056, 1057 n.1 (Pa. 2001).

      Section 9765 of the Sentencing Code provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 9765.       Merger, therefore, is appropriate only when two

distinct criteria are satisfied: (1) the crimes arise from a single criminal act;

and (2) all of the statutory elements of one of the offenses are included

within the statutory elements of the other. “[T]he plain language of Section

9765 precludes courts from merging sentences when each offense contains a



                                      -4-
J-S52016-16



statutory element that the other does not.” 4 Commonwealth v. Raven, 97

A.3d 1244, 1250 (Pa. Super. 2014).               This rule applies irrespective of

whether the offenses are codified in different statutes or in different

subsections of the same statute.          See id. at 1251-52 (different statutes);

Commonwealth v. Rhoades, 8 A.3d 912, 918 (Pa. Super. 2010) (different

subsections of the same statute).

       Subsection 3802(d)(1)(iii) provides:

       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;

              (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).


____________________________________________


4
  To the extent Appellant relies upon Commonwealth v. Williams, 871
A.2d 254 (Pa. Super. 2005) for the proposition that Subsection
3802(d)(1)(iii) and Subsection 3802(d)(2) merge for sentencing purposes,
such reliance is misplaced because Williams is distinguishable from the
instant case. In Williams, we concluded that Subsection 3731(a)(1) and
(a)(4) of the predecessor version of the DUI statute represented an
alternative basis for finding culpability for a single criminal act. Williams
involved DUI charges stemming from consumption of alcohol.               Here,
Appellant’s crime involved a controlled substance, i.e., drugs, which can vary
in form and substance.



                                           -5-
J-S52016-16



75 Pa.C.S.A. § 3802(d)(1) (footnote omitted).           Subsection 3802(d)(2)

provides:

      An individual may not drive, operate or be in actual physical
      control of the movement of a vehicle under any of the following
      circumstances:

            ....

           (2) The individual is under the influence of 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(d)(2).

      Each of these subsections contains an element that the other does not.

Subsection 3802(d)(1)(iii) requires proof that the defendant has any amount

of a Schedule I, II or III controlled substance in his or her blood. Subsection

3802(d)(2) requires proof that the defendant is under the influence of a drug

or combination of drugs to a degree which impairs his or her ability to safely

drive, operate or be in actual physical control of the movement of his or her

vehicle.    Given these disparate elements, the Commonwealth can prove a

violation of one subsection without proving a violation of the other. If the

Commonwealth proves that the defendant has any amount of Schedule I, II

or III controlled substance in his or her blood but fails to prove that he or

she was under the influence, this will sustain a Subsection 3802(d)(1)(iii)

violation but not a Subsection 3802(d)(2) violation. On the other hand, if

the Commonwealth proves that the defendant is under the influence of a

non-Schedule I, II, or III drug to a degree that impairs his or her ability to

safely drive his or her vehicle, this will result in a Subsection 3802(d)(2)

                                       -6-
J-S52016-16



violation but not a Subsection 3802(d)(1)(iii) violation. Accordingly, the trial

court did not err in refusing to merge Appellant’s Subsection 3802(d)(1)(iii)

violation with his Subsection 3802(d)(2) violation. See Raven, supra and

Rhoades, supra.

      In sum, we dispose of Appellant’s sufficiency of evidence claim based

on the reasons outlined in the trial court’s December 21, 2015 opinion. We

direct that a copy of the trial court’s December 21, 2015 opinion be attached

to any future filings in this case.   We also conclude that Appellant is not

entitled to relief on the merger issue.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2016




                                      -7-
                                                                                     Circulated 08/30/2016 03:39 PM




                  IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                          FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                   CRIMINAL TRIAL DIVISION


 COMMONWEALTH                               OF PENNSYLVANIA        CP-51-CR-0007923-2014


                                           v.   FILED
                                      DEC 21 2015         :        SUPERIOR COURT
                       MIA GRooMsCrimina\ App~a\~ Unit :           NO. 2305 EDA 2015
                                FirstJudicia\ 01stnct of PA

                                                         OPINION

 THOMAS STREET, J.                                                              December 9, 2015


I.              OVERVIEW AND PROCEDURAL HISTORY

                This is an appeal by the Defendant, Mia Grooms, of this court's Judgment of Sentence

 finding the Defendant guilty of Driving Under the Influence. On October 16, 2011, Philadelphia

 Police Officers encountered the Defendant at the 2200 block of West Ontario Street at 1 :45 a.m.

 The Defendant's vehicle was facing the wrong direction in a one-way street and blocking traffic.

 The Defendant did not cooperate with officers and showed signs of intoxication. The Defendant

 was arrested, taken into custody, and later charged with Driving Under the Influence (DUI):

 General Impairment/Incapable of Driving Safely- First Offense,1 Driving Under the Influence

 (DUI): Controlled Substance or Metabolite First Offense,2 Driving Under the Influence:

 Controlled Substance- Impaired Ability - First Offense,3 and Driving Under the Influence:

 Controlled Substance- Combination of Alcohol/Drugs- First Offense.4           CP-51-CR-0007923-2014 Comm v. Grooms, Mia
                                                                                                Oprnion



 1
     75   Pa.   C.S.   §   3802   §§ A 1
 2
     75   Pa.   C.S.   §   3802   §§ D 1
                                                                                   11111111111111111 11111 111
 3
                                                                                           7385093831
     75   Pa.   C.S.   §   3802   §§ D2
 4
     75   Pa.   C.S.   §   3802   §§ D3
               On March 4, 2015, the Defendant filed a Motion to Dismiss. On the same day, this court

      held a hearing on the matter and at the conclusion of the hearing denied the Defendant's Motion

      Motion to Dismiss.                A non-jury trial was held at which the Defendant was found guilty of

      Driving Under the Influence (DUI): Controlled Substance or Metabolite First Offense5 and

      Driving Under the Influence: Controlled Substance- Impaired Ability - First Offense.6

      Sentencing was deferred pending a CRN and Pre-Sentence Investigation. On July 9, 2015, the

      Defendant was sentenced to one (1) to two (2) years of incarceration at a state correctional

      institution for Driving Under the Influence (DUI): Controlled Substance or Metabolite-First

      Offense7 and two (2) years of reporting probation for Driving Under the Influence (DUI):

      Controlled Substance Impaired Ability- First Offense8 to run consecutively with credit for time

      served. The Defendant was also deemed RRRI eligible at nine (9) months.

              On July 20, 2015, the Defendant filed a Post-Sentence Motion. On July 23, 2015, the

      Defendant filed a Notice of Appeal to the Superior Court. On August 14, 2015, this court denied

      the Defendant's Post-Sentence Motion without a hearing. On September 14, 2015, after notes of

  testimony were made available, this court ordered the Defendant to file a Concise Statement of

      Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b) within twenty-one (21) days.

      On October 5, 2015, the Defendant filed a Concise Statement of Errors.

II.           FACTUAL HISTORY

              Inspector David Bellamy, currently assigned to audits and inspections, testified that on

  October 16, 2011, at approximately 1 :45 a.m. he was on duty as a Philadelphia police officer.




  5
       75 Pa. C.S. §   3802   §§   Dl
  6
       75 Pa. C.S. §   3802   §§   D2
  7
       75 Pa. C.S. §   3802   §§   DI
  8
       75 Pa. C.S. §   3802   §§   D2

                                                               2
(N.T.   3/4/15 p. 28).9 Inspector Bellamy stated that he was Captain of the 181h District at that

time and was going to do an unannounced compliance check at 1 :55 a.m. Id While en route to

that check, Inspector Bellamy came to the area of 2200 West Ontario Street in Philadelphia,

Pennsylvania. Id. At that time, he encountered a woman whom he identified as the Defendant.

Id. Inspector Bellamy observed a traffic jam caused by the Defendant's white Mitsubishi Galant

blocking eastbound traffic at the 2200 block of Ontario Street. (N .T. 3/4/15 p. 28). He explained

that Ontario is a one-way street and that three (3) or four (4) cars ahead of the Defendant were

trying to get by but they could not because the street was too small and the Defendant's vehicle

was blocking traffic. (N.T. 3/4/15 pp. 28-29).

         Inspector Bellamy stated that after he noticed the Defendant's vehicle blocking traffic he

went to her car and observed the situation more closely. (N.T. 3/4/15 p. 29). "I saw the

[Defendant] got out of the car, and she was stumbling and kind of hazy and everything like that,

and I suspected her of being inebriated." Id.                 Inspector Bellamy asked for the Defendant's

identification but she did not fully cooperate. Id. He stated that the Defendant took a little

plastic cup inside of the vehicle and poured the liquid out underneath her car. Id. He further

stated that she was "kind of out of it" and he called for backup. Id. Backup arrived three (3) to

four (4) minutes later and Inspector Bellamy remained on the scene for about ten (10) to fifteen

(15) minutes to explain to the arriving officers what he had observed. (N.T. 3/4/15 pp. 29-30).

         Inspector Bellamy testified that he has been a Philadelphia police officer for twenty (20)

years and has made numerous arrests for Driving Under the Influence (DUI), alcohol or other

substance, but less than a hundred (100) times. (N.T. 3/4/15 p. 30). He has observed intoxicated

individuals hundreds of times. Id. Inspector Bellamy stated that the Defendant was outside of


9All references to the record refer to the notes of testimony for the motions hearing and non-jury trial recorded on
March 4, 2015.

                                                          3
her vehicle and was not fully cooperating.     Id. "She was stumbling a little bit and her eyes were

glassy, and just not cooperating at all. The individuals [in the cars] were just blowing [their

horns] and she was outside the vehicle." Id.

       On cross-examination, Inspector Bellamy reiterated that he was at the 2200 block of

Ontario Street at 1 :45 a.m. on the date in question. (N.T. 3/4/15 p. 31 ). He explained that there

was a traffic jam on Ontario, a one-way street, and that the Defendant's car was going in the

opposite direction of traffic while other vehicles were trying to get around her car. Id. Inspector

Bellamy noticed this on his right-hand side as he traveled southbound on 22"d Street. Id.

Inspector Bellamy stated that when he first saw the Defendant she was outside of her car

stumbling around the driver's area with the door open while other drivers were honking at her.

(N.T. 3/4/15 p. 32). He clarified that the Defendant's car was stopped, she was not in the car, but

rather standing and stumbling around the car when he pulled up. Id.

       Additionally, Inspector Bellamy testified that there was no one else in the white

Mitsubishi and no one with him at the time. Id.          Inspector Bellamy stated that there were

approximately two (2) or three (3) other cars standing and blowing their horn in the direction

where Ontario Street runs eastbound. (N.T. 3/4/15 p. 33). He testified that he observed the

Defendant for about thirty (30) or forty (40) seconds prior to initiating an investigation as he was

trying to notice what the commotion was and then saw the car being driven or parked the wrong

way. Id. Inspector Bellamy clarified that he did not actually see the Defendant drive because the

car was stopped. Id.

       On redirect examination, Inspector Bellamy testified that the vehicle was running and the

keys were in the ignition. (N.T. 3/4/15 pp. 33-34). Inspector Bellamy stated that the Defendant




                                                   4
went back into the vehicle and came out with a beverage. (N.T. 3/4/15 p. 34). She then poured

the beverage out underneath the vehicle and would not cooperate with Inspector Bellamy. Id.

       On recross-examination, Inspector Bellamy stated in more detail that the Defendant went

back into her vehicle and retrieved a beverage that was in a plastic cup from the middle console.

(N.T. 3/4/15 p. 34). When asked whether the beverage was on the driver's side, Inspector

Bellamy stated no, but that "the driver had full control where she got it." (N.T. 3/4/15 p. 35).

When asked whether the Defendant took the keys out and handed them to the Inspector, he stated

that he could not remember. Id. When asked whether he could remember the Defendant,

Inspector Bellamy testified in the affirmative. Id. He stated that she had a short haircut, brown

skin, and was a female. Id. Inspector Bellamy responded that he could not remember how many

individuals he had arrested for DUI since the Defendant's arrest. (N.T. 3/4/15 p. 36).

       Philadelphia Police Officer Michael McCormick, assigned to the 391h District, testified

that on October 16, 2011 at approximately 2 a.m. he was on duty responding to a request for

backup in the area of 2200 West Ontario Street. (N.T. 3/4/15 p. 38). Officer McCormick

identified the Defendant in court and continued:

               I responded to a backup call over [the] radio from now Inspector
               Bellamy, asking for backup in reference to a car stop he had, which
               was located at 2200 West Ontario. I was the driver. Myself and
               my partner, Officer Giacomelli, pulled up in our patrol car and
               observed the defendant sitting in her vehicle, headed westbound.

(N.T. 3/4/15 pp. 38-39). Officer McCormick stated that the Defendant was facing westbound

and blocking traffic in a one-way eastbound street. (N.T. 3/4/15 p. 39). He also stated that

Inspector Bellamy's vehicle was in front of her vehicle with the lights on.          Id.   Officer

McCormick testified that:

               At that time we approached the female. She got out of the car,
               took-I forget if it was a Styrofoam cup or one of the red solo

                                                   5
              cups-and tossed the contents onto the street. I asked her to step
              out.   She was basically nonverbal, could barely stand, had
              trouble-swaying or sagging, however you want to call it, and she
              was - we had to direct her to lean up against another vehicle to
              keep her from falling on the ground.

(N.T. 3/4/15 pp. 39-40). When asked what happened next, Officer McCormick stated:

              We asked her if she knew where she was, if she had a driver's
              license, whose vehicle it was; registration, insurance, paperwork
              for the vehicle in reference to the car stop. She had a blank stare
              on her face, glassy eyes. Her lips were moving and nothing was
              coming out. She didn't -she was not able to say where she was,
              how she got there. She was nonverbal until we actually wound
              up-we believed she was under the influence. We placed her in
              handcuffs and put her in the back of the wagon. She only became
              verbal after we went down to the PDU to have her processed.

(N.T. 3/4/15 p. 40). Officer McCormick first observed the Defendant in the driver's seat of her

vehicle when he arrived on the scene with the vehicle running. Id. At the Police Detention Unit

(PDU), Officer McCormick stated that they passed the Defendant to the Accident Investigation

District (AID) officer and went through the intake process where she was searched by staff.

(N.T. 3/4/15 pp. 40-41). Officer McCormick also stated that when she was asked basic questions

regarding medical, she was barely able to answer the questions. (N.T. 3/4/15 p. 41).

       Philadelphia Police Officer William Lackman, assigned to the AID, testified that on

October 16, 2011 he was on duty at approximately          3:00 a.m. when he encountered the

Defendant. (N.T. 3/4/15 pp. 42-43). He stated that he was working at police headquarters on 81h

and Race Street in the PDU in the basement of the building.        (N.T. 3/4/15 p. 43).   Officer

Lackman explained that there is a DUI testing room inside the detention unit where he was

assigned that night.   Id.   The Defendant was brought to Officer Lackman at 3: 16 a.m. that

morning. Id. When she arrived, the Defendant was in custody with two police officers standing

with her at Officer Lackman's    door.   Id. He stated that he gave the Defendant the standard



                                                6
warnings for those arrested for DUI in the City and County of Philadelphia.        (N.T. 3/4/15 pp.

43-44).    He requested that she submit to a blood test and gave her information that related to

penalties for anyone that refused, which included driver's license suspension and appropriate

sentencing if convicted in a criminal court.    Id   Ultimately, the Defendant chose to take the

blood test. (N.T. 3/4/15 p. 44).

          Officer Lackman stated that the blood was drawn at 3:26 a.m. by a nurse in his presence

that morning.    (N.T. 3/4/15 p. 45). Two (2) tubes of blood were taken from the Defendant and

secured on Philadelphia Property Receipt No. 3010201.         Id.   The appropriate copies of the

property receipt to the DrugScan collection kit were attached to the blood and stored in a

refrigerator for blood sample storage at headquarters on 261h Street and Masters Street.         Id.

Those samples were later sent to DrugScan for analysis. Id. Officer Lackman stated that he did

not remember having much of a conversation with the Defendant. Id.

          Richard Cohn, forensic toxicologist and pharmacologist, with DrugScan, Incorporated

testified that he has been employed by DrugScan for thirty (30) years. (N.T. 3/4/15 p. 48). Mr.

Cohn stated that for twenty-three (23) of those years he was the laboratory director pursuant to

the Commonwealth       Bureau of Laboratory Requirements,      as published in the Pennsylvania

Bulletin, and also as the (RP) or responsible person pursuant to the National Laboratory

Certification Program under the Substance Abuse and Mental Health Services Administration.

For the last five (5) to six (6) years, Mr. Cohn has served only as a forensic toxicologist.   (N.T.

3/4/15 p. 48). Defense counsel stipulated to Mr. Cohn's expertise. Id.

          Mr. Cohn testified that he was working as a forensic toxicologist in November 2011 and

identified Commonwealth exhibit four (C-4) from DrugScan as a forensic toxicology report that

he authored on November 17, 2011 regarding the Defendant.           (N.T. 3/4/15 p. 49). Mr. Cohn



                                                 7
      explained that the results of the report indicated the presence of seven (7) milligrams of ethyl

      alcohol per milliliter of blood, or a .07 percent, and also a presence of phencyclidine or PCP at

      63 nanograms per milliliter of blood.       (N.T. 3/4/15 pp. 49-50).   He stated that these were

      significant positive findings.   Id. The Commonwealth marked and moved exhibits C 1 through

      C4 into evidence.

III.         ISSUE

             In the Pa. R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal, the

      Defendant identifies the following issue:

                  1. The evidence was insufficient to sustain convictions for driving
                     under the influence where the police officer did not observe
                     appellant operate a motor vehicle. When the officer first observed
                     appellant she was outside of the vehicle. She went in the vehicle
                     retrieved a cup and poured a liquid out underneath the car. The
                     police never ascertained who the driver of the vehicle was and no
                     evidence was introduced linking appellant as the driver, owner or
                     operator of the vehicle.

IV.          STANDARD OF REVIEW

             When examining the sufficiency of the evidence, the standard is well settled.           In

      reviewing a challenge to the sufficiency of evidence, a court must "determine whether the

      evidence, and all reasonable inferences deductible from that, viewed in the light most favorable

      to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense

      beyond a reasonable doubt." Commonwealth v. Reynolds, 835 A.2d 720, 725-726 (Pa. Super

      2002). In making this assessment, the reviewing court may not weigh the evidence or substitute

      its own judgment for the fact-finder's judgment. Id at 726. In other words, "the fact-finder

      resolves any doubt about the defendant's guilt unless no probability of fact could be drawn from

      the evidence because it was so weak and inconclusive." Id.         The Commonwealth need not

      preclude every possibility of innocence in establishing the facts and circumstances. Id.

                                                       8
            A challenge to the sufficiency of evidence is a question of law.           Commonwealth v.

     Heater, 2006 Pa. Super 86, 15 (Pa. Super 2006). A reviewing court may not weigh the evidence

     or substitute its own judgment for that of the fact-finder, who is free to believe all, part, or none

     of the evidence.   Commonwealth v. Adams, 2005 Pa. Super 296, 882 A.2d. 496, 498-99 (Pa.

     Super. 2005).   The Commonwealth       may satisfy its burden of proof entirely by circumstantial

     evidence. Id. at 499. "If the record contains support for the verdict, it may not be disturbed." Id.

V.          DISCUSSION

            The Defendant argues that the evidence was insufficient to sustain her convictions for

     Driving Under the Influence where the police officers did not observe the Defendant operate a

     motor vehicle. The Defendant further claims that no evidence was introduced linking her as the

     driver, owner, or operator of the vehicle. This court disagrees.

                     § 3802. Driving under      influence   of alcohol     or controlled
                     substance

                     (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), 1 known as The Controlled Substance,
                                            Drug, Device and Cosmetic Act;

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




                                                       9
                      (2) The individual is under the influence of 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. In order to convict a defendant of driving while under the influence to a

degree that rendered him incapable of safe driving, the Commonwealth must show that the

defendant was the operator of a motor vehicle, and that while operating the vehicle, the

defendant was under the influence to such a degree as to render him incapable of safe driving; to

establish the second element, it must be shown that alcohol or other substance had substantially

impaired the normal mental and physical faculties required to safely operate the vehicle.

Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. 2000).

       The term "operate" in driving under the influence 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. Williams, 871

A.2d 254 (Pa. Super. 2005). A determination of actual physical control of a vehicle, as required

to sustain conviction for driving under the (DUI), is based upon the totality of the circumstances.

Commonwealth v. Williams, 941 A.2d 14 (Pa. Super. 2008); Commonwealth v. Brotherson, 888

A.2d 901 (Pa. Super. 2005).

       A combination of the following factors is required in determining whether a person had

actual physical control of an automobile to sustain a conviction for driving under the influence:

the motor running, the location of the vehicle, and additional evidence showing that the

defendant had driven the vehicle. Commonwealth v. Woodruff, 447 Pa.Super. 222, 668 A.2d

1158, 1161 (1995). "In a majority of cases, the suspect location of the vehicle, which supports

an inference that it was driven, is a key factor in a finding of actual control." Brotherson, 888

A.2d at 905 (citing Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa.Super.1991) (finding

                                                10
actual physical control when the defendant was found parked in an alley, where he had pulled

over on the way home with the motor running); and Commonwealth v. Crum, 523 A.2d 799, 800

(Pa.Super. 1987) (finding actual physical control where defendant was found sleeping in his

parked car, along the side of the road, with the headlights on and the motor running).

       Here, the Commonwealth presented overwhelming evidence that was sufficient to sustain

the Defendant's DUI convictions and support a finding that she had actual physical control of the

vehicle while under the influence of a drug or a combination of drugs. The Commonwealth

introduced testimony that Inspector Bellamy discovered the Defendant's vehicle facing the

opposite direction in a one-way street and blocking traffic at 1 :45 a.m. on October 16, 2011.

(N.T. 3/4/15 pp. 28-29, 39-40). The engine of the vehicle was running and the keys were in the

ignition. (N.T. 3/4/15 pp. 33-34, 40). The credible testimony offered by Inspector Bellamy and

Officer McCormick also suggested that the Defendant was visibly intoxicated. (N.T. 3/4/15 pp.

28-29, 32, 39-41). She had glassy eyes, stumbled, had to be leaned up against a vehicle to keep

from falling, and failed to cooperate and communicate with officers. Id

       The Defendant also reached inside of the vehicle, grabbed a cup from the center console,

and dumped its liquid contents under the car in the officers' presence. (N.T. 3/4/15 pp. 29, 34,

39-40). Moreover, the Defendant sat on the driver's side when she was asked to step out of her

vehicle and the driver's side door was open in the precise location where she was initially

discovered standing and stumbling. (N.T. 3/4/15 pp. 32, 38-39). No other person was present in

or near the Defendant's vehicle. (N.T. 3/4/15 p. 33). Richard Cohn, forensic toxicologist and

pharmacologist, confirmed that the Defendant's BAC was .07% and that she had 63 nanograms

per milliliter of PCP in her blood, a significant positive finding. (N.T. 3/4/15 pp. 44-45). As

such, the vehicle's location in the middle of a one-way street facing the wrong direction and the



                                                11
      Defendant's intoxicated behavior in and around the driver's side of the running vehicle supports

      a finding that the Defendant was the driver of that vehicle.

VI.          CONCLUSION

             For all of these reasons, this court's decision should be affirmed.

                                                            BY THE COURT:




                                                       12
