J-A31030-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

PHILLIP CARL PECK

                            Appellant                    No. 568 MDA 2014


           Appeal from the Judgment of Sentence October 30, 2013
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000854-2012


BEFORE: BOWES, J., OTT, J., and STABILE, J.

MEMORANDUM BY OTT, J.:                                  FILED MARCH 04, 2015

        Phillip Carl Peck appeals from the judgment of sentence imposed on

October 30, 2013, in the Court of Common Pleas of Lebanon County,

following his conviction on charges of DUI – highest rate of alcohol, third

offense, and DUI – general impairment, third offense.1 Peck was sentenced

to one to five years’ incarceration.           Peck filed a post sentence motion

claiming the verdict was against the weight of the evidence. In addition to

challenging the weight of the evidence, in this timely appeal, he also claims

the evidence was insufficient in that the Commonwealth did not prove he

was in actual physical control of the vehicle. Following a thorough review of



____________________________________________


1
    75 Pa.C.S. §§ 3802(c) and 3802(a)(1), respectively.
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the submissions by the parties, relevant law, and the certified record, we

affirm, albeit on different reasoning.2

       We recite the salient facts as stated in the trial court’s Pa.R.A.P

1925(a) opinion.

       Scott Herneisey testified that during the early morning hours of
       March 2, 2012, he was home at his apartment at [XXX] West
       Main Avenue in Annville. He was attempting to sleep but was
       kept awake by loud music blaring outside his apartment. After
       twenty to thirty minutes, he went downstairs to the street and
       approached the vehicle from which the music was coming. The
       vehicle’s engine was running and [Peck] was sitting in the
       driver’s seat. When Herneisey knocked on the driver’s side
       window and motioned for [Peck] to turn down the music, [Peck]
       looked at Herneisey for a few seconds but did not turn down the
       music. Herneisey testified that since [Peck] appeared to be
       “drunk or messed up” and Herneisey did not want any trouble,
       he contacted the police.

       On cross-examination, Herneisey testified that he only knew that
       the vehicle had been parked in the street for as long as the
       music had been playing and that he had noticed that the brake
       lights were on. Corporal Steven Werner of the Pennsylvania
       State Police testified that he and Trooper Day were dispatched
       for a report of a vehicle parked on West Main Street with loud
       music playing and that they arrived at the scene at
       approximately 3:27 that morning. Upon arriving at the scene,
       they found [Peck’s] vehicle facing east on Main Street with the
       engine running, the headlights and brake lights on, and [Peck]
       sitting in the driver’s seat slumped over. The Troopers parked
       directly in front of [Peck’s] vehicle and activated the overhead
       lights of the cruiser. When they approached the vehicle, Trooper
       Werner observed that the music was very loud, that the windows
       were rolled up, and that [Peck] was the sole occupant. [Peck]
____________________________________________


2
  “An appellate court may affirm a judgment or verdict for any reason
appearing of record.” Commonwealth v. Melvin, 103 A.3d 1, 19 (Pa.
Super. 2014) (citation omitted).



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      was slumped over holding a cigarette in his hand.        When
      Corporal Werner knocked on the driver side window, [Peck]
      woke up, appeared disoriented, and stared at Trooper Day, who
      was on the other side of the vehicle. When Corporal Werner told
      him to turn the radio down, [Peck] continued to look at the
      Trooper “with a blank stare.” Corporal Werner was able to open
      the door, reach in to turn off the engine, and remove the key
      from the ignition.

      After a time, Corporal Werner was able to awaken [Peck] and
      have him step out of the car. When Corporal Werner asked
      [Peck] where he was coming from, [Peck] looked in an easterly
      direction. Upon further questioning, [Peck] told Corporal Werner
      that he had been drinking beer and shots at the Corvette Bar,
      which was located a short distance away, until between 1:30 and
      2:30 a.m. He informed Corporal Werner that he had intended to
      walk home from the bar, but that he was sitting in his car to
      keep warm. Trooper Werner also recalled [Peck] informing him
      that he had a colostomy bag and a bag to catch his urine, that
      he had decided he couldn’t walk home and was going to “sleep it
      off” in his car. Corporal Werner testified that the temperature
      was cold that morning.

Trial Court Opinion, 6/11/2014, at 2-4.

      Against this background of evidence, Peck claims there was insufficient

evidence to prove he had “actual physical control” of his car. Peck argues

actual physical control of a vehicle is demonstrated through the totality of

the circumstances including the factors of the “motor running, the location of

the vehicle, and additional evidence showing that the defendant had driven

the car.” Commonwealth v. Toland, 888 A.2d 901, 904 (Pa. Super. 2005)

citing Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).




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Specifically, he claims there was no evidence showing he had driven the

car.3

        The standard of review for claims of insufficient evidence is well-
        settled. With respect to such claims, we consider the evidence in
        the light most favorable to the Commonwealth as verdict winner.
        Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super.
        2005). In that light, we decide if the evidence and all reasonable
        inferences from that evidence are sufficient to establish the
        elements of the offense beyond a reasonable doubt. Id. We keep
        in mind that it was for the trier of fact to determine the weight of
        the evidence and the credibility of witnesses. Id. The jury was
        free to believe all, part or none of the evidence. Id. This Court
        may not weigh the evidence or substitute its judgment or that of
        the factfinder. Id.

Commonwealth v. Thur, 906 A.2d 552, 568-69 Pa. Super. 2006).

        In order to convict a person of DUI, the Commonwealth must prove, in

relevant part, the defendant was either driving, operating, or in actual

physical control of the vehicle.4 See 75 Pa.C.S. 3802. In this matter, the

parties agreed that actual physical control was the element of proof at issue.
____________________________________________


3
   The trial court asserted the evidence was sufficient to prove Peck had
driven the car. See Trial Court Opinion at 7-8. We note, however, that the
trial court misstated some of the evidence. Peck was parked on a street
adjacent to the bar where he had been drinking, N.T. Trial at 46. The
location where Peck was found was not across the street from the address
listed on his driver’s license. Peck was found on Main Street. Id. at 11. His
driver’s license carried an address on Railroad Street, id. at 47, which is
near the Lehigh Valley College. Id. at 46. However, because we affirm on
alternate grounds, any error in this regard is harmless.
4
  These terms are not defined by statute. The practical difference between
operating and actual physical control of a vehicle is unclear. “The term
‘operate’ requires evidence of actual physical control of either the machinery
or the motor vehicle or the management of the vehicle’s movement, but not
(Footnote Continued Next Page)


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      The fallacy of Peck’s argument is while the majority of case law

indicates some proof of movement is necessary to convict, that case law

does not address the fact that the standard jury instruction regarding actual

physical movement, does not require that finding.          The standard jury

instruction is relevant here because that is what Peck asked for and is what

the jury received.

            THE COURT: We’re going to go back on the record counsel to
      talk about instructions, jury instructions. Anybody have any special
      favorites they’d like me to give here to this jury?

             [Prosecutor]: I’m fine with the standards, Your Honor.

            [Defense Counsel]: I’d just ask the standards with the additional
      explanation under the standard instruction as to the actual physical
      control is because there’s no allegation that he was driving or in
      operation but under the standard subsection which in Court’s
      discretion would describe what actual physical would be, I think it’s
      appropriate in this case.

N.T. Trial, 8/8/2013, at 148-49 (emphasis added).

      The trial court then gave the jury the standard jury instruction

regarding actual physical control, as requested by defense counsel.

            [The Court]: The statute uses the terms drive, operate,
      and actual physical control because the crime of driving under
      the influence can be committed not only by a person who
      actually drives a vehicle, but also by one who operates or is in
      actual physical control of the movement of a vehicle. A person
      does not drive unless he actually has the vehicle moving, and of
      course, we do not have that in this case. As with any fact,
                       _______________________
(Footnote Continued)

evidence that the vehicle was in motion.”         Commonwealth v. Williams,
871 A.2d 254, 259 (Pa. Super. 2005).



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J-A31030-14


       however, the Commonwealth may prove that the Defendant
       drove the vehicle by circumstantial evidence but again, that’s not
       alleged in this case. Moreover, a person may operate or be in
       actual physical control of the movement of a stopped vehicle.
       These terms are broader than the term drive because the law is
       concerned with a threat to public safety from motorists who have
       an intention of driving a vehicle immediately within their control,
       as well as those who actually do drive one while they are under
       the influence.    While the mere fact that a Defendant was
       somewhere within the passenger compartment of a vehicle, is
       not by itself, enough to show he was operating or was in actual
       physical control of it. You should consider all of the facts and
       circumstances in deciding whether the Defendant was in physical
       control of the machinery of the vehicle or was in a position to
       manage its movement at the time and place alleged.

Id. at 171-72 (emphasis added).

       This instruction given is, in substance, a verbatim recitation of the

standard instruction. See Pa.SSJI (Crim) 17.3802(a)(1) (2014) (last revised

April 2005).     The instruction defines operate and actual physical control

together and does not require a finding that the Defendant has moved the

vehicle.5 Rather, the jury is asked to determine whether the Defendant was

in physical control of the machinery or a position to manage its movement at

the time and place alleged.

       It is unclear how or when the case law and standard instruction

diverged, yet it is apparent they have.          The genesis of the elements of

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

defendant had driven the vehicle” appears to be Commonwealth v. Byers,

____________________________________________


5
 Because the relevant terms, ‘drive’, ‘operate’, ‘actual physical control’, are
not defined by statute, this instruction does not contradict the statute.



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650 A.2d 468 (Pa. Super. 1994) which noted that “in a majority of cases,

the suspect location of the vehicle, which supports an inference that it was

driven, is a key factor in finding actual control.”      Id. at 469 (emphasis

added). However, Byers did not discuss the standard jury instruction.

       Two years later, our Supreme Court decided Commonwealth v.

Wolen, 685 A.2d 1384 (Pa. 1996). Wolen, a plurality decision,6 involved a

challenge to a supplemental instruction.         Our Supreme Court quoted the

instruction given, regarding actual physical control, and noted there had

been no objection:

       A driver has actual physical control of his car when he has real
       bodily restraining or directing influence or dominion or regulation
       over its movement or the movement of its machinery. It is not
       dispositive that the driver's car was not moving and that the
       driver is not making an effort to move it when the officers
       arrived. A driver may be in actual physical control of his car and
       therefore operating it while it is parked or merely standing still
       so long as the driver is keeping the car in restraint or in a
       position to regulate its movement.

       Neither is it dispositive that the driver was asleep at the time
       that the officers arrived. An intoxicated person seated behind the
       steering wheel of a motor vehicle is a threat to the safety and
       welfare of the public. The danger is less than that involved when
       the vehicle is actually moving, but it does exist. While at the
       precise moment the defendant was approached by the officers,
       he may have been exercising no conscious volition with regard to
____________________________________________


6
  Six Justices participated in the decision. Three Justices made up the
majority, two Justices concurred, and one dissented. The dissent did not
criticize the original jury instruction; it only criticized the supplemental
instruction which it believed directed a guilty verdict if the jury found the
defendant was actually behind the wheel of the car at the time the police
arrived.



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      the vehicle, there is still a legitimate inference to be drawn that
      the defendant has his choice of placing himself behind the wheel
      and either starting the vehicle or permitting it to run. He,
      therefore, has the actual physical control of the vehicle even
      though the manner in which such control was exercised resulted
      in the vehicle remaining motionless.

Id. at 1387. While this instruction is not a verbatim recitation of the current

instruction, it is very similar and it does not require proof of movement of

the car.

      One   year   prior   to   Wolen,   a   panel   of    our   Court   decided

Commonwealth v. Woodruff, 668 A.2d 1158 (Pa. Super. 1995), in which

the sufficiency of the evidence and the jury charge were at issue. Regarding

actual physical control, Woodruff stated:

      We find that appellant was in “actual physical control” under the
      statute when he was found by the police.          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.”

Id. at 1161.

      Later in the decision, the jury charge was quoted:

      The crime of driving under the influence can be committed, not
      only by a person who literally drives a vehicle, but also [by] one
      who operates or is in actual physical control of the movement of
      a vehicle. A person does not drive, unless he actually has the
      vehicle moving, however, a person may operate or be in actual
      physical control of the movement of a standing vehicle. These
      terms are broader than the term drive. They cover certain
      situations where a person, under the influence, is a distinct
      threat to public safety, even though he is not actually driving at
      the time. Thus, a person operates or [is] in actual control of a

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        motor vehicle, if he is in actual physical control of either the
        machinery of the vehicle or of the management of the
        movement of the vehicle itself.

        You may consider circumstantial evidence in determining
        whether the defendant was driving, operating or in actual
        physical control of the movement of a vehicle. Factors that you
        may consider in determining whether the defendant was in
        actual control of the movement of a vehicle are[:] ... where the
        vehicle was located, whether the engine was running, whether
        the lights were on, whether the defendant was located or seated
        in the vehicle and, specifically, whether he was seated behind
        the steering wheel and, generally, whether the defendant had
        control and management of the vehicle. The Commonwealth
        need not prove that the vehicle was actually in motion.

Id. at 1162.

        Despite the fact that this instruction says nothing about proof that the

vehicle had been moved, Woodruff held:

        The first paragraph of the instruction given in the instant case
        cited above, however, comports exactly to the current version of
        Pennsylvania's Suggested Standard Jury Instructions. See
        Pa.SSJI (Crim.) 17.3731C (1991).[7] Moreover, the 1985 version
        of this instruction, which is nearly identical to the current
        version, is quoted approvingly in Crum. See [Commonwealth
        v.] Crum, 362 Pa.Super. [110] at 115-17, 532 A.2d [799] at
        801-802. The instruction, therefore, reflects accurately our
        relevant case law on the subject. See Byers, 437 Pa. Super. at
        506, 650 A.2d at 470.

Id.8


____________________________________________


7
    75 Pa.C.S. § 3731 was the prior version of Section 3802.
8
  In Wolen, our Supreme Court criticized that portion of the charge that
spoke of the potential dangers to the public at large. Rather, it stated that
(Footnote Continued Next Page)


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        The charge given in Woodruff is substantially similar to the charge

given instantly, and Woodruff approved of the charge while indicating that

had been the standard charge for at least the ten previous years.9

Accordingly, the charge given in the instant matter has currently been

accepted and approved of for approximately 30 years.

        We return now to the argument before us. Peck claims because there

was no evidence his car had moved, his conviction is unsustainable.

However, the jury was never asked to determine that fact. Rather, the jury

was asked to determine whether Peck was in “physical control of the

machinery or was in a position to manage it’s movement at the time and

place alleged.”    See Jury Charge, supra.          There is no question that the

evidence produced at trial supports a determination that Peck was in a

position to manage the movement of the car at the time and place alleged.

Peck was behind the wheel, had started the car, turned on the headlights,

and had his foot on the brake. The only thing left to actually move the car

was to put it in gear. Accordingly, the jury verdict is based upon sufficient



                       _______________________
(Footnote Continued)

there is a per se threat to the public, “even if there are no other members of
the public immediately endangered.” Wolen, 685 A.2d 1386, n.4 (Opinion
Announcing the Judgment of the Court). Again, we note there was no
criticism of that portion of the charge that omitted consideration of
movement of the vehicle.
9
    We note this time frame includes the Byers decision.



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evidence as charged. Because Peck never asked the jury to determine if he

had moved the car, he cannot complain now that that element is lacking.

        Peck’s challenge to the weight of the evidence is based upon the same

argument regarding movement of the car. Therefore, this claim must also

fail.

        Judgment of sentence affirmed.10




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2015




____________________________________________


10
   Although we have noted an apparent divergence between case law and
jury instructions, we take no position on which is the “proper” interpretation.
We have determined that the jury decision was consistent with both the
evidence presented and the jury instruction that was requested and which
was given.



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