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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MONICA ANNE MARIE MATULA                   :
                                               :
                       Appellant               :   No. 1036 EDA 2018

             Appeal from the Judgment of Sentence March 2, 2018
      In the Court of Common Pleas of Carbon County Criminal Division at
                        No(s): CP-13-CR-0000142-2015


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                                FILED JULY 27, 2018

        Monica Anne Marie Matula appeals from her judgment of sentence,

entered in the Court of Common Pleas of Carbon County, after she was

convicted of Driving Under the Influence (DUI) – general impairment.1 After

careful review, we affirm.

        Officer Richard Reis of the Lansford Police Department received a radio

dispatch, at 12:40 a.m. on October 8, 2014, stating that a resident of 43 East

Abbott Street in Lansford had complained that there were two people2 sitting

in a parked car, drinking beer, and listening to loud music. Officer Reis, who

was on patrol at the time, arrived at the East Abbott Street location, a

residential street, within minutes of receiving the dispatch and saw the subject

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1   75 Pa.C.S. § 3802(a)(1).

2 Officer Reis’ trial testimony confirmed that Matula was the only occupant of
the vehicle upon his arrival to the scene. N.T. Non-Jury Trial, 11/15/17, at 8.
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car, legally parked, with the engine running. The headlights of the vehicle

were off and a female, Matula, was sitting in the driver’s seat of the car with

the driver’s side window down. The female was listening to music. As he

approached the vehicle, Officer Reis smelled an odor of alcohol coming from

the female, noticed that her eyes were glassy, and that her speech was

slurred.     Officer Reis identified the female as Matula, who was also the

registered owner of the car.          Matula told Officer Reis that she had been

listening to music in her car and initially denied that she had been drinking.

Later, Matula admitted that she had been drinking, but not in her car. Matula

lived in Brockton, Pennsylvania, twelve miles away from East Abbott Street.

Matula gave Officer Reis several conflicting explanations, over the course of a

couple of minutes, as to how her car arrived at the East Abbott Street

location.3    When asked to exit the car, Officer Reis noted that Matula was

swaying side-to-side and stumbling.




____________________________________________


3Although not relevant to the issue on appeal, Matula was only able to perform
one of several field sobriety tests. As a result, she was charged with the two
DUI offenses. While a blood draw was taken at the hospital on the evening of
her arrest and revealed a .213% BAC, the test results were later suppressed
pursuant to the dictates of Birchfield v. North Dakota, 136 U.S. 2160
(2016). In Birchfield, the Supreme Court held that warrantless blood draws
are a violation of the Fourth Amendment and that drivers cannot be found to
have consented to a warrantless blood draw if they believe that their refusal
constitutes a criminal offense. Id. at 2184-86. Thus, the section 3802(c)
charge was withdrawn at trial.



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        Matula was charged with DUI – general impairment and DUI – highest

rate of alcohol.4 On May 20, 2016, Matula filed a petition for writ of habeas

corpus seeking dismissal of the charges, claiming that the Commonwealth had

not established a prima facie case that she had operated or been in actual

physical control of her automobile, as required under section 3802, at the time

of her arrest. On June 23, 2016, the trial court denied Matula’s petition. On

September 15, 2017, a non-jury trial was held before the Honorable Joseph

J. Matika.5 The court adjudged Matula guilty of the above-stated DUI offense

and sentenced her, on March 2, 2018, to no less than ten days to no more

than six months of incarceration. Matula filed this timely appeal, presenting

one issue for our review: “Whether the evidence was sufficient to establish

that [] Matula was driving, operating or in actual physical control [of] her car

to commit DUI when the evidence established that she merely started her

parked car to listen to music?” Appellant’s Brief, at 4.

        Pennsylvania’s DUI statute provides, in relevant part:

        § 3802. Driving under influence of alcohol or controlled
        substance

           (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


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4   75 Pa.C.S. § 3802(c).

5 Only Officer Reis and Detective Joshua Tom testified at the trial. At the time
of the instant matter, Detective Tom was a patrolman who was on duty and
also responded to the dispatch. N.T. Non-Jury Trial, 11/15/17, at 30-31.
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         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). In Commonwealth v. Williams, 941 A.2d 14

(Pa. Super. 2008), our Court explained that:

      The term “operate” in section 3802(a)(1) 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.

Id. at 27 (citations and quotations omitted).        While the term “operate”

requires evidence of actual physical control of either the machinery of the

motor vehicle or the management of the vehicle’s movement, it does not

require that the vehicle was in motion. Commonwealth v. Young, 904 A.2d

947 (Pa. Super. 2006).

      In Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994), the

defendant was discovered sleeping in the driver’s seat of a parked car. The

car was parked in the parking lot of a drinking establishment, the engine was

running, and the headlights were on. Our Court held that the Commonwealth

did not introduce sufficient evidence to show that the defendant had been in

actual physical control of the vehicle, holding that it is not enough to be merely




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sitting in a parked car while intoxicated to prove that a defendant was in

“actual physical control” of the vehicle.6

       We find the instant case distinguishable from Byers. In Byers, there

was no evidence that the defendant had done more than turn on the engine

of the car in the parking lot of the establishment where he had been drinking

and became intoxicated. He would not have needed to drive the vehicle after

consuming alcohol to arrive at the location where he was found. Conversely,

Matula was parked in a residential neighborhood, 12 miles from her home,

with the car’s engine running, was clearly intoxicated, had the radio on, could

not coherently explain how her car had arrived at its location, and there was

no evidence of alcohol in the vehicle. Under a totality of the circumstances,

we conclude that the Commonwealth circumstantially proved that Matula was

in “actual physical control” of her vehicle; she was clearly in a position to

regulate its movements.         See Williams, supra (conviction under section

3802(a)(1) affirmed on appeal where: defendant parked diagonally in parking

lot of establishment that does not serve alcoholic beverages, there was no

evidence that defendant had consumed alcohol nearby, defendant was in

driver’s seat with hands on steering wheel, vehicle was running and headlights

and stereo on, car was registered to defendant, and defendant showed signs

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6 We note that the defendant in Byers was convicted of DUI under 75 Pa.C.S.
§ 3731(a)(1), which has since been repealed and replaced by section
3802(a)(1). Both sections, however, contain the same elements to prove the
offense of DUI. See Byers, 650 A.2d at 469 (language of section 3731(a)(1)
states that “'[a] person shall not drive, operate, or be in actual physical control
of the movement of any vehicle’ while intoxicated.”).
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of visible intoxication and failed sobriety tests); Commonwealth v. Bobotas,

588 A.2d 518 (Pa. Super. 1991) (actual physical control found where

defendant was parked in an alley on way home with engine running);

Commonwealth v. Leib, 588 A.2d 922 (Pa. Super. 1991) (actual physical

control found where defendant was asleep in the car in middle of road with

engine off).

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/18




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