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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

REBECCA LYNN LENTZ,

                         Appellant                    No. 901 MDA 2015


        Appeal from the Judgment of Sentence December 11, 2014
            In the Court of Common Pleas of Bradford County
           Criminal Division at No(s): CP-08-CR-0000463-2014

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

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:FILED OCTOBER 21, 2016

      The Pennsylvania Legislature, seeking to protect the public, has

addressed the serious problem of threats to public safety by drunk drivers

with 75 Pa.C.S. § 3802 et seq. Making clear its intent to protect the public,

the law directs that evidence that a person drove, operated, or was in

control of a motor vehicle while impaired or with a BAC of .08% or higher is

enough by itself to convict the person of DUI. Id.

      The Majority would require the state trooper in the instant case to sit

idly by and wait until Appellant placed her car in motion and put members of

the public at heightened risk before making an arrest. Such a requirement

goes against the intent of the Legislature, and I respectfully dissent.

      Within the DUI statutory scheme of this Commonwealth, our General

Assembly has proscribed the commission of any of three distinct actions by a

driver after he or she imbibes to excess: driving, operating, or being in

*Former Justice specially assigned to the Superior Court.
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actual physical control of the movement of a vehicle.    Under our rules of

statutory construction, we must presume that “the legislature does not

perform useless acts in adopting the words of a statute.” Commonwealth

v. Elliott, 50 A.3d 1284, 1290 (Pa. 2012) (citation and quotation marks

omitted). “Thus, when the legislature uses [ ] different words, we must also

presume that it must have meant for the words to have separate meanings.”

Id. (citations and internal quotation marks omitted).

     We have construed the term “operate” to “require 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).      In Commonwealth v. James, 863 A.2d 1179

(Pa.Super. 2004) (en banc), we recognized that evidence could establish

that a driver was in actual physical control over the machinery of a car even

though the car never moved. Specifically, we stated:

     Since the scope of the [DUI] statute was broadened, we have
     held that “operate” does not require evidence that the vehicle
     was in motion; it merely requires evidence of actual physical
     control of either the machinery of the motor vehicle or the
     management of the vehicle's movement. Thus, the question of
     “actual physical control” only arises where the Commonwealth
     cannot show that a defendant operated a car by moving it.

Id. at 1185 (citations omitted).   Our prior decision in Commonwealth v.

Grimes, 648 A.2d 538 (Pa.Super. 1994), informed this construction of the

DUI statute.



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      In Grimes, the defendant was convicted under, inter alia, a prior but

functionally equivalent version of the DUI law for our present purposes. The

evidence revealed that the defendant, while in the driver’s seat of his truck,

revved the engine for about five minutes while parked outside a bar.         An

investigating police officer discerned that the defendant was intoxicated.

This Court determined that the Commonwealth had met its burden of

establishing the defendant was in “actual physical control” over the vehicle,

even though the vehicle never moved. Specifically, we observed:

      It is well settled that in order to be convicted under this statute,
      the Commonwealth need not prove that the vehicle was in
      motion at the time of the incident, but rather, must simply prove
      that the defendant was in actual physical control over the
      vehicle, and was, thus, a threat to public safety.
      Commonwealth v. Crum, 523 A.2d 799, 801-02 (Pa.Super.
      1987). The concept of “actual physical control” involves the
      control of the movements of either the machinery of a motor
      vehicle or of the management of the vehicle itself, without a
      requirement      that    the   entire   vehicle   be   in   motion.
      Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa.Super.
      1991).

Id. at 543.

      In my view, the particular facts of the case sub judice sufficed to show

that Appellant’s conduct satisfied the first definition of “operate,” as she was

in actual physical control of the machinery of the motor vehicle at the time

Trooper McDermott prevented her from pulling away.         Unlike the driver in

Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994), for example,

who, as the majority explained, was found asleep in a parked car outside a

bar, Appellant had just assumed control of a vehicle parked momentarily on


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the berm of a roadway with its engine running and lights on. Seated in a

driving   position   with   her   hands   on   the   steering   wheel,   Appellant

acknowledged to the investigating trooper that she was ready to resume her

party’s trip home. Under our precedent, this evidence sufficed to establish

Appellant’s operation of the vehicle.

      The majority dismisses Appellant’s intent to drive immediately as

irrelevant to our inquiry under Sections 3802(a)(1),(c), but under the

totality of circumstances I consider her stated intent to be a key component

to a finding that she was in operation of the vehicle in question. Indeed, we

have previously identified the intent to drive as a distinguishing factor taking

a case outside of the Byers “sleeping it off” line of cases:

      Here, appellant was parked on a public street in front of a store.
      While it is unclear from the record where appellant 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 appellant’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 intoxicated.

Commonwealth v. Toland, 995 A.2d 1242, 1247 (Pa.Super. 2010).

      Appellant was not seated in a car parked at the bar where she and her

companion had just imbibed.        She had, instead, assumed actual physical

control over the machinery of a car momentarily stopped while in transit

when she sat in the driver’s seat, placed her hands on the steering wheel,

and positioned herself to drive away. Such a construction of our DUI law is

consistent with both our prior interpretation of the statutory language and


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the public protection purposes of the scheme as a whole.   Accordingly, I

would affirm judgment of sentence.




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