J-S29027-18

                               2018 PA Super 134

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              V.                           :
                                           :
                                           :
 YVONNE DONNA GOOSEBY-BYRD,                :
                                           :
                   Appellant               :   No. 2786 EDA 2017

           Appeal from the Judgment of Sentence May 25, 2017
   In the Court of Common Pleas of Delaware County Criminal Division at
                     No(s): CP-23-CR-0007267-2016


BEFORE:    PANELLA, J., MURRAY, J., and STEVENS*, P.J.E.

OPINION BY MURRAY, J.:                                   FILED MAY 23, 2018

     Yvonne Gooseby-Byrd (Appellant) appeals from the judgment of

sentence imposed after the trial court convicted her of driving under the

influence (DUI) of alcohol, 75 Pa.C.S.A. § 3802(a)(2). We affirm.

     The trial court recounted the facts as follows:

     On August 19, 2016 at about 1:38 a.m., Officer Jonathan
     McGowan of the Lansdowne Borough Police Department was
     called to 73 East Greenwood Avenue to investigate a disturbance
     in the area. N.T., 5/25/17, p. 5, 25. He arrived at the location
     about two minutes after [the] initial call. Id. at 26. Upon his arrival
     he saw a silver sedan parked and occupied by three women who
     were arguing loudly. [Appellant] was in the driver’s seat and two
     passengers were in the rear of the vehicle. Id. at 7-8, 26. Officer
     McGowan approached [Appellant] and told her that he was called
     to the area due to a complaint about noise and asked her to
     produce her driver’s license, registration and proof of insurance.
     She provided her driver’s license and a rental agreement for the
     vehicle bearing her name. Id. at 9, 31. Officer McGowan testified
     credibly that the vehicle was running with the keys in the ignition.
     Id. at 97. As he approached he saw that the vehicle’s windshield
     was severely cracked. He asked about the damage and [Appellant]
     told him that a pedestrian jumped on the vehicle earlier when the

____________________________________
* Former Justice specially assigned to the Superior Court.
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      group was leaving a club in West Philadelphia. Id. at 10, 27.
      [Appellant] told him that she did not drink alcohol at the club but
      that her sisters had. Id. at 9-10. She stated that they were in the
      neighborhood looking for a relative’s house. During this
      interaction the officer detected the strong odor of alcohol coming
      from the passenger compartment. He also observed that
      [Appellant’s] eyes were glassy and bloodshot and her speech was
      slurred. Her passengers exhibited the same features. Id. at 11.

            Officer McGowan asked [Appellant] to exit the vehicle. She
      was unsteady on her feet, had a staggered gait as she walked to
      the back of her vehicle, [and was] using the vehicle for support.
      Three field sobriety tests followed and [Appellant] failed each of
      the tests. She participated in a preliminary breath test. The officer
      concluded that [Appellant] was incapable of safe driving and
      placed her under arrest. Id. at 11-16. Thereafter he read her an
      Implied Consent form which she signed, agreeing to blood testing.
      A blood test measured her BAC at .088%. Id. at 19-20.
      Throughout this entire episode, at no time did either [Appellant]
      or her sisters say that [Appellant] was not the driver of the
      vehicle. Id. at 32.

            [At trial, Appellant] testified in her own defense and also
      offered the testimony of her sister, Linese, who was in the vehicle.
      Both women admitted that during the course of their interaction
      with McGowan, before and after the arrest, no one ever said that
      Linese was the driver of vehicle, not [Appellant]. Id. at 50, 87-
      90.

Trial Court Opinion, 9/20/17, at 4-6.

      Appellant was charged with DUI and a bench trial commenced on May

25, 2017.    The same day, the trial court rendered its guilty verdict and

sentenced Appellant to six months of probation plus costs and community

service. N.T., 5/25/17, at 103-104. Appellant filed a motion for post-trial

relief assailing the sufficiency of the evidence, as well as a motion for

reconsideration of sentence. After a hearing on July 18, 2017, the trial court

denied the motions. Appellant filed this timely appeal.

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      Appellant presents a single issue for our review:

           WHETHER THE EVIDENCE WAS INSUFFICIENT TO CONVICT
      [APPELLANT] OF DUI BEYOND A REASONABLE DOUBT WHERE THE
      TRIAL TESTIMONY PRECLUDED ANY LAWFUL INFERENCE THAT
      SHE WAS OPERATING, OR IN CONTROL OF THE VEHICLE IN
      QUESTION WHEN THE POLICE ARRIVED ON THE SCENE.

Appellant’s Brief at 7.

      In reviewing a sufficiency claim, our Supreme Court has summarized:

      When reviewing a challenge to the sufficiency of the evidence, we
      must determine if the Commonwealth established beyond a
      reasonable doubt each of the elements of the offense, considering
      the entire trial record and all of the evidence received, and
      drawing all reasonable inferences from the evidence in favor of
      the Commonwealth as the verdict-winner. The Commonwealth
      may sustain its burden of proof by wholly circumstantial evidence.

Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009) (citations

omitted).

      Instantly, Appellant was convicted under the following provision of the

Vehicle Code:

      (a) General impairment.--
      ...

      (2) 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 at least 0.08% but less than 0.10%
      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)(2).

      Appellant states that “[t]he factual issue contested in the present case

was whether Appellant ever operated the automobile she was found in on the

evening of August 19, 2016 after she had ingested the alcohol measured in

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her blood.”1 Appellant’s Brief at 12. Appellant emphasizes that police “never

saw her operating the vehicle” and argues there was “insufficient evidence

that she had driven the car to the location to which the police were called.”

Id. at 13. Appellant asserts “it was incumbent upon the prosecution to prove

[Appellant] was the one who drove the vehicle to the location” and “they

completely failed to do so as the only testimony relevant to the issue was that

of Linese Byrd who forthrightly told the court that she was the one who drove

the car there.” Id. at 14. Appellant concludes “there existed no factual basis

from which to infer that Appellant ever operated the vehicle in question while

her BAC was above the legal limit.” Id. We disagree.

       The trial court convicted Appellant of DUI-general impairment under 75

Pa.C.S.A. § 3802(a)(2).         Our Supreme Court has stated that the statute

“defines the offense to include two elements: that the individual drove after

drinking alcohol, and that the amount of alcohol ingested before driving was

enough to cause the individual’s BAC level to be at least 0.08 percent and

below 0.10 percent within two hours after driving.”       Commonwealth v.

Duda, 923 A.2d 1138, 1147 (Pa. 2007) (emphasis in original, footnote

deleted).




____________________________________________


1 Appellant’s sole argument is that she was not the driver of the vehicle; she
does not contest the taking of the blood draw, the results, or the two-hour
timeframe prescribed in 75 Pa.C.S.A. § 3802(a)(2).


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      Instantly, in addition to introducing into evidence the BAC results from

Appellant’s blood draw, the Commonwealth presented circumstantial evidence

which led police to believe that Appellant drove the vehicle after drinking

alcohol.   Officer Jonathan McGowan testified to responding to a call of

“subjects arguing out front possibly in a vehicle.” N.T., 5/25/17, at 5. Officer

McGowan did not see Appellant drive the vehicle, nor did he see the vehicle in

motion. Id. at 29-30. Rather, when Officer McGowan arrived, three women

were sitting in the car and Appellant was in the driver’s seat; Officer McGowan

testified that the vehicle “was running.” Id. at 6-10. Officer McGowan noticed

that the vehicle’s windshield was “severely damaged, spidered and cracked.”

Id. at 10. When Officer McGowan inquired, Appellant told the officer that the

women were coming from a club in West Philadelphia, and a pedestrian

jumped onto the vehicle as they were leaving the club.        Id. at 9-10, 32.

Officer McGowan testified:

            At the time I could smell a strong odor of alcohol beverage
      emanating from the vehicle itself, and I observed [Appellant]
      displaying glassy, bloodshot eyes, and her speech was slurred.

Id. at 10. He added that when he asked Appellant to exit the vehicle, “[w]hile

she was stepping out of the vehicle and walking to the rear, she appeared to

be very unsteady on her feet. She had a staggered gait, and she wasn’t able

to stand up straight and walk normally.” Id. at 11. Appellant also failed field

sobriety tests.   Id. at 13-15.   Thus, Officer McGowan asked Appellant to



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consent to a blood draw.          Appellant agreed and signed the appropriate

paperwork; the test showed Appellant’s blood alcohol content to be .088. Id.

at 21.

         Appellant’s sister, Linese Byrd, testified that she was one of the

individuals with Appellant when Officer McGowan arrived. Id. at 34-39. Ms.

Byrd stated that she and Appellant and their other sister had been celebrating

Appellant’s birthday, but pulled over and got out of the car because Appellant

and her other sister were arguing. Id. at 38-39. Ms. Byrd claimed that she

had been driving until the three sisters exited the car. Id. at 39. She said

that the women were outside of the car when the police arrived and instructed

the women to get back inside of the car. Id. at 40. Ms. Byrd testified that

Appellant never drove the vehicle. Rather, Ms. Byrd drove because she was

not drinking and “knew [Appellant] would be drinking.” Id. at 41, 45, 59.

She conceded that even after Appellant was arrested, Ms. Byrd never told the

police that Appellant had not been driving. Id. at 50, 53. She explained that

she was reluctant to admit to driving because she did not have a license. Id.

at 53-54, 56. It was not until trial that Ms. Byrd indicated that she was the

driver of the vehicle. Id. at 63.

         Appellant also testified that her sister, Linese Byrd, was the driver of the

vehicle. Id. at 69. She corroborated her sister’s testimony that the sisters

were arguing and exited the vehicle. Id. at 71. She stated that the police

arrived and asked the women to get back into the vehicle; Appellant stated


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that even though she had not been driving, she got into the driver’s seat

because “the vehicle is rented to me, it’s in my name, and I didn’t feel [any]

need to not get into the driver’s seat.”    Id. at 73.    She added that she

“absolutely” felt okay to drive.   Id. at 76.   Appellant testified that Officer

McGowan told her to exit the vehicle because he “smelled liquor.” Id. at 87.

She admitted that she never told him that she was not driving because he did

not ask, and “[i]t wasn’t about whether I was driving. I think that he could

see that I wasn’t driving.” Id. at 87-88.

      On this record, the trial court found Appellant guilty of DUI-general

impairment.   In rejecting Appellant’s sufficiency claim, the court expressly

found the testimony of Ms. Byrd and Appellant to be “completely lacking in

credibility as it was riddled with inconsistencies throughout.”     Trial Court

Opinion, 9/20/17, at 6.     The court concluded that “[t]heir self-serving

testimony was incredulous.” Id. Accordingly, the evidence was sufficient for

the trial court to establish beyond a reasonable doubt that Appellant drove a

vehicle under the influence of alcohol as proscribed by Section 3802(a)(2).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/18

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