J-S08037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
             v.                              :
                                             :
DARYL PROVANCE,                              :
                                             :
                   Appellant                 :           No. 1138 WDA 2015

              Appeal from the Judgment of Sentence July 16, 2015
                in the Court of Common Pleas of Fayette County,
                 Criminal Division, No. CP-26-CR-0000500-2015

BEFORE: STABILE, DUBOW and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                         FILED FEBRUARY 11, 2016

        Daryl Provance (“Provance”) appeals from the judgment of sentence

imposed     following   his   convictions   of   aggravated    assault,   recklessly

endangering another person, criminal mischief, and driving under influence

of alcohol or controlled substance (“DUI”). 1     We affirm.

        The trial court set forth the underlying relevant facts in its Opinion.

See Trial Court Opinion, 9/3/15, at 2-4. We adopt those facts for purposes

of this appeal. See id.

        After a jury trial, the jury found Provance guilty of the above-

mentioned crimes. The trial court sentenced Provance to four to eight years

in prison. Thereafter, Provance filed a timely Notice of Appeal and a timely

court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise

Statement of Matters Complained of on Appeal.



1
    18 Pa.C.S.A. §§ 2702(a)(4); 2705; 3304(a)(5); 75 Pa.C.S.A. § 3802(a)(1).
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      On appeal, Provance raises the following question for our review:

“Was the evidence legally and factually insufficient to show that [Provance]

committed the crimes of aggravated assault, recklessly endangering another

person, criminal mischief[,] and DUI beyond a reasonable doubt[?]”        Brief

for Appellant at 7 (capitalization omitted).

      Provance argues that the Commonwealth witnesses failed to identify

him as the driver of the alleged vehicle, or that Provance’s vehicle had

caused the damage.      Id. at 10, 13-14.       Provance also asserts that the

Commonwealth failed to prove that it was practically certain that death or

serious bodily injury would result from his conduct. Id. at 14. Additionally,

Provance contends that the Commonwealth failed to prove that he operated

the alleged vehicle while incapable of safely driving, because the State

Trooper never observed Provance driving the vehicle.        Id. at 10, 14-15.

Lastly, Provance argues that the record is devoid of any direct or

circumstantial evidence to show that he had any intent to cause harm to the

victims. Id. at 16.

      We apply the following standard of review when considering a

challenge to the sufficiency of the 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


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      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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).

      The Pennsylvania Crimes Code defines the crime of aggravated

assault, in relevant part, as follows:

      (4) attempts to cause or intentionally or knowingly causes
      bodily injury to another with a deadly weapon[.]

18 Pa.C.S.A. § 2702(a)(4).     The Pennsylvania Crimes Code defines deadly

weapon as follows:

      Any firearm, whether loaded or unloaded, or any device
      designed as a weapon and capable of producing death or serious
      bodily injury, or any other device or instrumentality which, in the
      manner in which it is used or intended to be used, is calculated
      or likely to produce death or serious bodily injury.

Id. § 2301.    This Court has recognized that an automobile, when used in a

certain manner, may become a deadly weapon.              Commonwealth v.

Thomas, 656 A.2d 514, 519 (Pa. Super. 1995).

      The Pennsylvania Crimes Code defines recklessly endangering another

person as follows:



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      A person commits a misdemeanor of the second degree if he
      recklessly engages in conduct which places or may place another
      person in danger of death or serious bodily injury.

18 Pa.C.S.A. § 2705.

      The Pennsylvania Crimes Code defines criminal mischief, in relevant

part, as follows:

      (5)   intentionally    damages    real   or   personal   property   of
      another[.]

Id. § 3304(a)(5).

      The Pennsylvania Vehicle Code defines DUI 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.A. § 3802(a)(1).

      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. Furthermore, a police officer may utilize both his
      experience and personal observations to render an opinion as to
      whether a person is intoxicated.

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

citations and some quotation marks omitted).



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       Here, the trial court addressed Provance’s claims and correctly

determined that they are without merit. See Trial Court Opinion, 9/3/15, at

4-6.   The credible evidence supports Provance’s convictions of the above-

mentioned crimes. See Melvin, 123 A.3d at 40. Thus, we adopt the sound

reasoning of the trial court for the purpose of this appeal. See Trial Court

Opinion, 9/3/15, at 4-6.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/11/2016




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