J-S33035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOHNNY LEE NELSON

                            Appellant               No. 1624 WDA 2015


              Appeal from the Judgment of Sentence July 8, 2015
               In the Court of Common Pleas of Crawford County
              Criminal Division at No(s): CP-20-CR-0000634-2014


BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY GANTMAN, P.J.:                          FILED JUNE 22, 2016

        Appellant, Johnny Lee Nelson, appeals from the judgment of sentence

entered in the Crawford County Court of Common Pleas, following a

bifurcated bench/jury trial after which Appellant was convicted of one count

of driving under the influence of alcohol or controlled substance (“DUI”)

(general impairment), one count of DUI highest rate of alcohol, and driving

while operating privilege is suspended or revoked.1 We affirm.

        The trial court opinion sets forth the relevant facts of this case as

follows:

           Trooper Timothy Dilijonas testified that at approximately
           2:15 a.m. while he and another Trooper were on routine
____________________________________________


1
    75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 1543(a), respectively.


___________________________

*Former Justice specially assigned to the Superior Court.
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       patrol they were traveling north on State Rt. 6 and 19 near
       Saegertown.     He indicated that the Troopers were
       following a blue Chevy Blazer with a registration plate
       “JUNKIN” traveling north in front of them.

       He stated that he observed that vehicle make a right hand
       turn into the Owl’s Nest parking lot and park with the
       headlights facing south right up against that building.

       Ashley Kirkland, a bartender in the Owl’s Nest, testified
       that [Appellant] came into the bar after 2:00 a.m. and
       wanted either an alcoholic beverage or non-alcoholic
       beverage but she told him she could not serve him
       because it was after 2:00 a.m. She indicated that he was
       a bit upset which concerned her and that she looked out
       the window after he left and she testified to the following:

          I called the police because I looked out the window
          and I saw a vehicle and I could see the tail lights,
          [they] were going on and off like as if somebody had
          never driven before, brakes go on brakes go off,
          lights flickering on or off, somebody got out of the
          driver’s side, went to the passenger side and I only
          saw one person.

       She went on to indicate that after the police arrived she
       went outside and the person who exited that vehicle was
       the same person who had been in the Owl’s Nest shortly
       after 2:00 a.m. and was [Appellant].

       Trooper Dilijonas testified that he received a dispatch
       apparently based on the call Ashley Kirkland made at
       approximately 2:30 a.m. and he arrived at the Owl’s Nest
       at approximately 2:37 a.m.

       He testified that at this time he noticed the same Chevy
       Blazer but it was now facing north on the north side of the
       parking lot so that it looked like it had backed up and
       turned around so the headlights were now facing north.

       He stated that he noticed someone in the front passenger
       side who was ultimately identified as [Appellant] and who
       was the only one who exited the vehicle.


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        He further testified that [Appellant] told him that he drove
        the Blazer from the south side where it had been parked
        up against the building to the other side of the parking lot.

                                    *     *     *

        In considering whether the conclusion that [Appellant] was
        driving the vehicle was against the weight of the evidence,
        we note that [Appellant] presented the testimony of
        Shannon Muddiman who essentially indicated that she left
        [Appellant] with his keys in the Owl’s Nest parking lot,
        apparently after he had gone into the Owl’s Nest and the
        bartender refused to serve him soda. She indicated that
        she did not know what happened after she left the parking
        lot in her own vehicle.

        [Appellant] also presented the testimony of Jessica Yonkin
        who indicated that when she retrieved the Blazer at the
        Owl’s Nest in Saegertown the morning following
        [Appellant’s] arrest, the driver’s seat had been moved
        close to the steering wheel to the point she could not drive
        the vehicle and to the point [Appellant] would not have
        been able to do so either.

        Finally, [Appellant] himself testified that after he had been
        drinking it was Ms. Muddiman and not himself that drove
        the vehicle. He further indicated that he would not have
        told Trooper Dilijonas that he was driving the vehicle in the
        parking lot but he was apparently so under the influence
        that he may have misunderstood the question and he did
        not want to call Trooper Dilijonas a liar.

(Trial Court Opinion, filed September 15, 2015, at 2-3) (internal citation to

record omitted).   The jury found Appellant guilty of the DUI offenses, and

the court convicted Appellant of driving with a suspended license. The court

sentenced Appellant on July 8, 2015, to pay costs, a fine of $1,500, and

intermediate punishment of sixty (60) months.               Appellant’s intermediate

punishment    sentence   required       him    to   serve   seven   (7)   months’   of


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incarceration with work release privileges, followed by four (4) months of

on-radio frequency with SCRAM, three (3) months of on-radio frequency

without SCRAM, one (1) month of intensive intermediate punishment

supervision and regular intermediate punishment supervision.2            Appellant

timely filed a post-sentence motion on July 17, 2015, challenging the

sufficiency and weight of the evidence to support his convictions, which the

court denied on September 15, 2015.              Appellant timely filed a notice of

appeal on October 14, 2015.             On October 15, 2015, the court ordered

Appellant to file a concise statement of errors complained of on appeal, per

Pa.R.A.P. 1925(b), and Appellant timely complied on November 4, 2015.

       Appellant raises two issues on appeal:

          WHETHER THERE WAS SUFFICIENT EVIDENCE TO
          SUPPORT VERDICTS OF GUILTY WITH RESPECT TO
          DRIVING UNDER THE INFLUENCE AS TO THE ESSENTIAL
          ELEMENT OF THESE OFFENSES WITH RESPECT TO
          [APPELLANT] BEING IN OPERATION OR IN PHYSICAL
          CONTROL OF A MOTOR VEHICLE AT THE RELEVANT TIME
          PERIOD.

          WHETHER OR NOT THE VERDICTS WITH RESPECT TO
____________________________________________


2
  We observe the trial court sentenced Appellant pursuant to 75 Pa.C.S.A §
3803(a), (b)(4). We are also mindful of Commonwealth v. Grow, 122
A.3d 425 (Pa Super. 2015), and Commonwealth v. Musau, 69 A.3d 754
(Pa. Super. 2013) (interpreting prefatory language found in prior version of
75 Pa.C.S.A § 3803(a) to limit maximum sentence for first or second DUI
conviction to six (6) months’ imprisonment). Grow and Musau, however,
do not apply in this case or affect Appellant’s sentence because Appellant
violated Section 3802(c) and had a prior offense, so his DUI was properly
graded as a first degree misdemeanor, with a maximum sentence of five (5)
years. See 18 Pa.C.S.A. § 106(b)(6) and 75 Pa.C.S.A. § 3803(b)(4).



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         DRIVING UNDER THE INFLUENCE WERE AGAINST THE
         WEIGHT OF THE EVIDENCE AS TO [APPELLANT’S] BEING
         IN OPERATION OR IN PHYSICAL CONTROL OF A MOTOR
         VEHICLE AT THE RELEVANT TIME PERIOD.

(Appellant’s Brief at 4).

      For purposes of disposition, we combine Appellant’s issues.         Initially

Appellant argues the Commonwealth presented insufficient evidence to

demonstrate that Appellant operated or was in physical control of the vehicle

on the night of the incident because neither the bartender nor Trooper

Dilijonas personally observed Appellant operating the vehicle.            Instead,

Appellant contends his witness, Shannon Muddiman, established that she

was the sole operator of the vehicle until Appellant’s arrest in the Owl’s Nest

Tavern parking lot.    To emphasize this point, Appellant states at the time

State Police confronted him, Appellant was in the passenger seat of the

vehicle with the keys out of the ignition.      Appellant also challenges the

weight of the evidence, arguing the Commonwealth’s testimony taken as a

whole was circumstantial and failed to show that Appellant operated or was

in physical control of the vehicle.     Appellant concludes this Court must

dismiss the convictions for DUI or order a new trial. We disagree.

      With respect to Appellant’s sufficiency claim:

         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

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          addition, we note that the facts and circumstances
          established by the Commonwealth need 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      Our standard of review for a challenge to the weight of the evidence is

as follows:

          The weight of the evidence is exclusively for the finder of
          fact who is free to believe all, part, or none of the evidence
          and to determine the credibility of the witnesses. An
          appellate court cannot substitute its judgment for that of
          the finder of fact. Thus, we may only reverse the lower
          court’s verdict if it is so contrary to the evidence as to
          shock one’s sense of justice. Moreover, where the trial
          court has ruled on the weight claim below, an appellate
          court’s role is not to consider the underlying question of
          whether the verdict is against the weight of the evidence.
          Rather, appellate review is limited to whether the trial
          court palpably abused its discretion in ruling on the weight
          claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)


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(internal citations omitted).

      The DUI statute in relevant part provides:

         § 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 rendered incapable of
               safely driving, operating or being in actual physical
               control of the movement of the vehicle.

                                  *     *   *

               (c) Highest rate of alcohol.—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
               0.16% or higher 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)(1), (c).       The term “operate” as used in the DUI

statute “requires 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).

      Regarding Appellant’s issues, the trial court reasoned as follows:

         The circumstantial evidence alone, when looked at in the
         light most favorable to the verdict winner, was sufficient to
         establish beyond a reasonable doubt that [Appellant] was
         driving the vehicle and that is bolstered by his admission
         that he did so.

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                                 *    *    *

        Obviously, while some of the testimony presented by
        [Appellant] and his witnesses was contrary to the
        [Commonwealth’s] testimony, as we have indicated, the
        trier of fact was free to believe which testimony the trier of
        fact found to be truthful in whole or in part and we cannot
        find based on all of this evidence that the verdict was so
        contrary to the evidence to shock our sense of justice.

(Trial Court Opinion at 2-3). The record supports the court’s analysis, which

we accept. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2016




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