J-S56005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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

        Appellant, Rebecca Lynn Lentz, appeals from the judgment of sentence

of 72 hours’ to 6 months’ incarceration, following her conviction at a bench

trial for multiple counts of driving under the influence of alcohol (DUI).

Appellant challenges the sufficiency and weight of the evidence supporting

her conviction. After careful review, we reverse.

        The trial court summarized the facts adduced at trial as follow:

              At [the] non-jury trial held on October 23, 2014, the
        parties stipulated that [Appellant] was under the influence of
        alcohol at the time of the stop and that her blood alcohol
        concentration was 0.189%. On March 8, 2015, at approximately
        1:20 a.m., Pennsylvania State Trooper William Patrick
        McDermott was travelling north on State Route 220 in Bradford
        County and came upon a Buick LeSabre.              The vehicle
        immediately turned its signal on and pulled over to the side of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     the road. The trooper passed by the vehicle[,] which then pulled
     back out and began driving behind the trooper[’s] vehicle. The
     trooper noticed the vehicle weaving back and forth, but [he]
     could not tell if it was going over the center or fog lines. In
     order to determine how the vehicle was driving, the trooper
     pulled over and off [the] road, assuming the Buick would pass
     him [so that] he could then follow it. However, the vehicle put
     its turn signal on and pulled [over] approximately one car length
     [behind the trooper’s vehicle]. While watching in his rear view
     mirror, the trooper saw the driver exit the vehicle, run around
     the car[,] and enter into the passenger[’s] side. He also saw
     someone moving over to the driver[’s] side in the vehicle. The
     trooper then activated his lights and approached the driver’s
     side.    [Appellant] was seated in the driver[’s] seat.         The
     headlights were on, the keys were in the ignition[,] and the
     engine was running. The trooper inquired why [the] drivers had
     switched.     [Appellant] told him that her friend was too
     intoxicated to drive and now [Appellant] was going to [drive]
     because she felt more sober. [The t]rooper [smelled] a strong
     odor of alcohol from inside the vehicle, [Appellant]’s eyes were
     glossy, glassy[,] and slightly red.          [The t]rooper asked
     [Appellant] if she had been drinking and [she] stated yes.
     [Appellant] was asked to step outside the vehicle. [Appellant]
     became very argumentative. … [Appellant] was eventually
     taken for blood tests. [Appellant] was charged with [DUI].
     [Appellant] testified that she did not drive the vehicle and that
     she was planning on calling a friend to come and give them a
     ride. [According to the trooper’s testimony, however, Appellant]
     did not tell the … trooper that when he asked what she was
     doing[;] rather, she replied that she was more sober and was
     going to drive. The [trial c]ourt did not find [Appellant] credible.

           A non-jury trial took place on October 23, 2014[,] after
     which [Appellant] was found guilty of three counts of [DUI], 75
     Pa.C.S. § 3802(a)(1), general impairment, § 3802(c)[,] highest
     rate, and § 3802(b), high rate, [all] ungraded misdemeanors.
     [Appellant] was sentenced on December 14, 2014[,] to a
     minimum of 72 hours and a maximum of six months on [§
     3802(c)]. The other two counts merged into [that offense]
     and[,] therefore, no sentence was imposed [for those offenses].

Trial Court Opinion (TCO), 12/23/15, at 1-2.




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      Appellant filed timely post-sentence motions on December 18, 2014,

which were denied by operation of law on May 20, 2015. Appellant filed a

timely notice of appeal on May 27, 2015, and a timely, court-ordered

Pa.R.A.P. 1925(b) statement on June 3, 2015. The trial court issued its Rule

1925(a) opinion on December 23, 2015.

      Appellant now presents the following questions for our review:

        I.   Was the evidence sufficient to convict [Appellant] of [DUI]
             beyond a reasonable doubt where [Appellant] was in the
             driver’s seat of a running vehicle for mere seconds after
             moving to that seat from the passenger’s side of the
             vehicle?

       II.   Was the verdict of guilty of [DUI] against the weight of the
             evidence where testimony showed [Appellant] was in the
             driver’s seat for no more than 10 seconds, and where
             [Appellant] would have to adjust the seat and mirrors to
             drive?

Appellant’s Brief, at 7.

      Appellant’s first claim challenges the sufficiency of the evidence. Our

standard of review of sufficiency claims is well-settled:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim[,] the court is required to view the evidence in the light
      most favorable to the verdict winner giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence.




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Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      Appellant’s sufficiency claim concerns a portion of the DUI statute that

is common to each of her separate DUI convictions, as emphasized below:

      (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.

         (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.

      (b) High 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 at
      least 0.10% but less than 0.16% within two hours after the
      individual has driven, operated or been 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. § 3802 (emphasis added).




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      Appellant argues that because the trooper directly observed that she

had switched seats with the driver of the Buick LeSabre just prior to their

interaction, she had not (yet) driven, operated, or been in actual control of

that vehicle.     Appellant suggests that, even construing the evidence in a

light most favorable to the Commonwealth, it was at best demonstrated that

Appellant had committed an attempted DUI.

      The trial court, acting as finder-of-fact in this case, concluded that

because Appellant “was in the driver[’s] seat, the vehicle was running, the

lights were on, and [Appellant] told the police officer [that] she was planning

on driving[,]” the evidence was sufficient to demonstrate that Appellant was

operating the vehicle within the meaning of the DUI statute. TCO, at 3. In

reaching   this    conclusion,   the   trial   court   relied   on   our   decision   in

Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005), where

we stated, “[t]he term ‘operate’ 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.” Id.

at 904 (quoting Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa.

Super. 2003)).

      In Brotherson,

            [a]t approximately 10:45 p.m. on March 24, 2001, Officer
      Jeffrey Trobes of the Philadelphia Police Department was on
      routine patrol of a closed playground at 3001 West Lehigh
      Avenue when he saw a car parked on the playground's
      basketball court. According to the officer, access to the park
      was located at the park's 29th Street entry gate, which was
      routinely closed at dusk and was, in fact, closed when the officer

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     observed the car in question. The only other way the car could
     have entered the park is if it had driven across a grass lot and
     onto the basketball court, but there was no testimony as to tire
     tracks through the grass or mud on the car.

     The officer approached the car to discover that the engine was
     running and a driver, [Brotherson], was asleep in the driver's
     seat. From his vantage point, the officer saw an “open” 40
     ounce bottle of malt liquor in the car. Officer Trobes awoke
     [Brotherson], whom the officer noticed to have glassy eyes and
     a slow response to questions. Based on his observations, the
     officer administered sobriety tests, which [Brotherson] failed.
     Officer Trobes therefore arrested [Brotherson] and transported
     him for BAC testing, which showed [Brotherson] to have a
     .118% BAC over three hours after the arrest. Accordingly,
     [Brotherson] was charged with DUI.

Id. at 903 (footnotes omitted).

     Brotherson   appealed   his   subsequent   DUI   conviction,   essentially

arguing that the evidence was not sufficient to demonstrate that he was

intoxicated prior to driving his vehicle onto the playground. Thus, the issue

directly addressed in Brotherson is not on-point.          Nevertheless, the

Brotherson Court noted:

            In a majority of cases, the suspect location of the vehicle,
     which supports an inference that it was driven, is a key factor in
     a finding of actual control. See Commonwealth v. Bobotas,
     403 Pa.Super. 136, 588 A.2d 518, 521 (1991) (finding actual
     physical control when the defendant was found parked in an
     alley, where he had pulled over on the way home, with the
     motor running); Commonwealth v. Crum, 362 Pa. Super. 110,
     523 A.2d 799, 800 (1987) (finding actual physical control when
     [the] defendant was found sleeping in his parked car, along the
     side of the road, with the headlights on and the motor running).
     Conversely, where the location of a car supported the inference
     that it was not driven, this Court rejected the inference of actual
     physical control. Specifically, in [Commonwealth v.] Byers,
     [650 A.2d 468 (Pa. Super. 1994)], we concluded that there was
     no actual physical control even though the motorist was found
     asleep behind the wheel of his running car, because the car had

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      not been moved from the parking lot of the bar where the
      motorist became intoxicated. Id.

Brotherson, 888 A.2d at 905.

      Base on this analysis of case law, the Brotherson Court reasoned:

      The case at bar involves evidence above and beyond a showing
      that an intoxicated [a]ppellant merely started the engine of a
      parked car. The highly inappropriate location of the car-on the
      basketball court of a gated children's playground-created a
      strong inference that it was an already intoxicated [a]ppellant
      who had driven the car to that spot. Further distinguishing this
      case from Byers is the reasonable inference that [the
      a]ppellant's BAC of .118% more than three hours after his arrest
      could not have derived exclusively from the limited amount of
      beer available within his car.

Id.

      Clearly, the Brotherson case relied on certain factors, similar to those

involved in this case (such as the location of the vehicle, the engine running,

and the suspect being seated in the driver’s seat), to conclude that

Brotherson had been driving, operating or in actual physical control of the

movement of his vehicle before he was discovered by police, and to dispel

the notion that he had only become intoxicated after parking his vehicle on

the basketball court.   The instant case is markedly different, as Trooper

McDermott, through direct observation, definitively knew that Appellant had

not been driving the vehicle beforehand. So, while the factors cited by the

trial court tend, in a general sense, to demonstrate that a suspect had been

driving or operating a vehicle while intoxicated before being discovered in a

motionless vehicle, no such inference can be drawn under the specific facts

of this case.


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       Thus, the trial court based Appellant’s conviction not on an inference

drawn from the facts that Appellant had been driving or operating the

vehicle while intoxicated before being discovered by police, but on her intent

to drive while intoxicated in the immediate future. TCO, at 4 (“[Appellant]

admitted that she intended to drive.           [Appellant] was in the driver’s seat,

[the] engine was running[,] and [the] lights were on. [Appellant] intended

to drive.”). The trial court cites no controlling authority for this proposition. 1

Accordingly, we conclude that the evidence was insufficient to convict

Appellant of any of the three charged DUI offenses.2

____________________________________________


1
  The court relies only on a standard criminal jury instruction for this
proposition, an instruction which suggests that the public safety justification
for the DUI law extends to those individuals who have a present intention of
driving while intoxicated. TCO, at 4. However, whether the justification for
the DUI law extends to such circumstances is a different question from
whether the statutory language actually prohibits that conduct.             The
legislature is certainly free to design statutory language capable of extending
the DUI law to encompass an intent-to-drive-intoxicated crime. In any
event, the Standard Jury Instructions are not controlling legal authority.
See Commonwealth v. Simpson, 66 A.3d 253, 274 n.24 (Pa. 2013) (“The
Suggested Standard Jury Instructions themselves are not binding ….”);
Butler v. Kiwi, S.A., 604 A.2d 270, 273 (Pa. Super. 1992) (“[T]he
suggested standard jury instructions have not been adopted by our supreme
court and therefore are not binding, even where a party specifically requests
the court use them. As their title suggests, the instructions are guides only.
The trial court need not follow them verbatim and may choose to ignore
them entirely.”).

2 We recognize that in Brotherson, as in previous cases, this Court has
stated that “[t]he term ‘operate’ 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)
(Footnote Continued Next Page)


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      Finally, it is possible that Appellant could have been convicted of

attempted DUI. However, Appellant argues that she was not charged with

that offense.    That assertion is supported by the record.       The criminal

complaint filed by Trooper McDermott makes no mention of the inchoate

crime of attempt, despite the fact that the form utilized contains specific

boxes, for each offense, which an officer can check in order to indicate the

commission of an inchoate offense.3 Furthermore, the criminal information

filed by the Commonwealth makes no mention of attempt or the relevant

statute, 18 Pa.C.S. § 901.

      We recognize that our Supreme Court has determined that because

attempt crimes are inherently lesser-included offenses of the crime
                       _______________________
(Footnote Continued)

(emphasis added) (quoting Commonwealth v. Wilson, 660 A.2d 105, 107
(Pa. Super. 1995)). However, we do not accept the trial court’s implicit legal
conclusion that this language was crafted in order to construe the DUI
statute as prohibiting the mere intent to drive while intoxicated. Instead,
that language simply articulates that the Commonwealth is not required to
present evidence in the form of a direct observation of a DUI defendant’s
driving in order to obtain a conviction for DUI. Left unstated is the corollary,
which is that some circumstantial evidence is required to support the
inference that the vehicle in question had been in motion while under the
intoxicated defendant’s control at some prior time. The cases which relied
on this language uniformly involved circumstances where the defendant was
first observed in a motionless vehicle, or not otherwise directly observed
driving. To our knowledge, no cases have involved the critical fact in this
case, which is that the evidence was uncontested that Appellant had not
been driving or otherwise operating the vehicle before her encounter with
Trooper McDermott.
3
   The criminal complaint form contains check boxes for “Attempt,”
“Solicitation,” and “Conspiracy,” including references to the applicable
statutes, 18 Pa.C.S. §§ 901(a), 902(b), and 903, respectively.



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attempted, a failure to specifically charge for an attempt crime does not

preclude a conviction on that basis when the greater-included crime has

been properly charged. See Commonwealth v. Sims, 919 A.2d 931, 943

(Pa. 2007) (holding “the fact that [the] appellee had been charged only with

escape did not preclude the trial court from convicting him of attempted

escape”).   However, in Sims, the defendant was actually convicted of

attempted escape (“[t]he court ultimately found [Sims] guilty of attempted

escape”), and did so only after considering the prosecutor’s closing

argument that the defendant “should be convicted of ‘at least attempted

escape.’” Id. at 933.

      Here, however, the record utterly fails to demonstrate that Appellant

was actually convicted of an attempted-DUI offense.        Appellant was not

charged with an attempt offense, as noted above. The prosecutor did not

argue at trial that, despite not being charged with attempted-DUI, Appellant

could be convicted of an attempted DUI offense in accordance Sims. See

N.T., 10/23/14, at 51-53.    Furthermore, when issuing its verdict, the trial

court did not state that it was convicting Appellant of attempted DUI. Id. at

53-55. To the contrary, the trial court found Appellant “guilty of all counts

contained in the information[.]” Id. at 54. Moreover, in its opinion, the trial

court did not state, nor even suggest, that it convicted Appellant of

attempted DUI.     See TCO, at 2 (“[Appellant] was found guilty of three

counts of [DUI]….”).    Finally, the Commonwealth makes no argument on

appeal, as it declined to file a brief in this case. Under these circumstances,

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the rule established in Sims does not apply.        Regardless of whether

Appellant could have been convicted of attempted DUI in the trial court, we

cannot convict her of that offense in the first instance, sua sponte, on

appeal.

     Because of our disposition above, Appellant’s second claim, involving

the weight of the evidence supporting his conviction is rendered moot.

     Judgement of sentence reversed. Jurisdiction relinquished.

     Judge Panella joins this memorandum.

     President Judge Emeritus Stevens files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/2016




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