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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

TINA M. CRISAFI

                               Appellant              No. 1789 MDA 2015


           Appeal from the Judgment of Sentence September 22, 2015
       in the Court of Common Pleas of Luzerne County Criminal Division
                       at No(s): CP-40-CR-0004125-2014

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED JANUARY 30, 2017

        Appellant, Tina M. Crisafi, appeals from the judgment of sentence

entered in the Luzerne County Court of Common Pleas following her

convictions for driving under the influence (“DUI”), general impairment, 1 and

DUI, high rate of alcohol.2        Appellant contends that the evidence was

insufficient to prove that she drove, operated or was in actual physical

control of the vehicle in question. We affirm.

        On July 18, 2014, Appellant was arrested on charges of DUI, general

impairment, and DUI, high rate of alcohol. Criminal Compl., 7/18/14, at 2.

On April 28, 2015, a jury trial commenced. The Commonwealth presented

Officer Jason Dudick of the Wilkes-Barre Police Department as its sole

*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. § 3802(a)(1).
2
    75 Pa.C.S. § 3802(b).
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witness. Officer Dudick testified that while on patrol, he responded to a call

reporting two females fighting in the middle of the road on Madison Street.

N.T. Trial, 4/28/15, at 13-14.   When he arrived on the scene, he found a

green Ford Explorer station wagon stopped in the middle of the road with

Appellant sitting inside. Id. at 14. As Officer Dudick approached the car,

the car “veered to the right, and the front passenger tire struck the curb.”

Id. at 15. Officer Dudick testified that as soon as the car struck the curb,

Appellant exited the vehicle. Id. at 15. For Appellant’s own safety, Officer

Dudick then ordered her to return to her car, and she complied. Id.

      Officer Dudick testified that upon making contact with Appellant, he

“noticed that she had the bloodshot eyes.       She smelled of an alcoholic

beverage. And then once she did exit the vehicle, she was stumbling.” Id.

at 16. Officer Dudick then took Appellant into custody on suspicion of DUI,

and transported her to the Wilkes-Barre City Police Headquarters. Id. at 18.

The parties stipulated to the fact that Appellant submitted to a breathalyzer

test, which returned a result of .137 BAC. Id. at 27-28.

      Appellant testified on her own behalf, explaining that she lent her car

to her friend Teodoro “Tolo” Amigon on July 17, 2014.       Id. at 32.   That

evening, her friends drove her to and from a bar where she consumed five

to six glasses of wine. Id. at 33. Upon returning home, she noticed that Mr.

Amigon had not returned the car as he said he would. Id. at 34. Sometime

between 12:00 a.m. and 1:00 a.m. on the morning of July 18, 2014, she



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called her husband and asked him to drive her to Mr. Amigon’s house. Id.

Her husband dropped her off at Mr. Amigon’s house and left.       Id. at 35.

Once there, Mr. Amigon explained that after driving the car to run errands,

he started to drink and for that reason did not drive the car back to

Appellant’s house. Id.

     At some point during the conversation, Mr. Amigon’s girlfriend exited

the house and fought with Appellant. Id. Appellant testified that after the

two struck one another, Mr. Amigon separated them and instructed

Appellant to go cool off in her car. Id. Appellant then called her husband to

ask him to pick her up and take her home. Id. While she was sitting in the

car, the police approached, having been called by a neighbor during the

fight. Id. at 36-37. She explained to the officer who arrived that she had

been drinking and that she had no intention to drive. Id. at 40. Appellant

testified that throughout this ordeal, Mr. Amigon maintained possession of

the car keys. Id. at 36, 40.

     Appellant’s husband, James Crisafi, corroborated much of Appellant’s

testimony, adding that when he returned to Mr. Amigon’s house to pick up

Appellant, she and the car were gone.     Id. at 50.   Teodoro Amigon was

called as the final witness for the defense, and he testified to a similar

account of the night’s events as Appellant. Id. at 55-62.

     The jury found Appellant guilty on April 28, 2015, and Appellant was

sentenced on September 22, 2015.      Appellant did not file a post-sentence



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motion, and timely filed the instant appeal on October 8, 2015.            On

December 1, 2015, Appellant filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.          That same day, Counsel

notified the court of his intent to withdraw pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009).       On December 8, 2015, the trial court filed a

responsive Pa.R.A.P. 1925(a) opinion. On April 11, 2016, Counsel submitted

both his petition to withdraw appearance as counsel and an Anders brief.

      This Court, on August 24, 2016, filed a memorandum opinion denying

counsel’s petition to withdraw due to deficiencies in his Anders brief.

Commonwealth v. Crisafi, 1789 MDA 2015 (Pa. Super. Aug. 24, 2016)

(unpublished memorandum). Thus, this Court directed counsel to amend his

Anders brief or to file an advocates brief.     Id.   In response, Appellant’s

counsel has filed an advocates brief.

      Appellant raises the following issue for our review:

         Whether the Commonwealth failed to present evidence
         sufficient to prove beyond a reasonable doubt that
         [Appellant] was guilty of one count of driving under the
         influence, general impairment, incapable of driving safely,
         3rd offense pursuant to 75 Pa.C.S. § 3802 (a)(1), and one
         count of driving under the influence, high rate of alcohol
         pursuant to 75 Pa.C.S. § 3802 (b)?

Appellant’s Brief at 4.3


3
 While Appellant did not raise this claim with the trial court, Pennsylvania
Rule of Criminal Procedure 606(A)(7) expressly provides that a challenge to



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      Appellant argues that the evidence was insufficient to prove that she

drove, operated or was in actual physical control of the vehicle in question.

While she admits that she did consume several glasses of wine, Appellant

contends that her evidence established that “she was only sitting in her

vehicle” and did not even have possession of the vehicle’s keys. Appellant’s

Brief at 9. No relief is due.

      We begin by noting that “[a] claim challenging the sufficiency of the

evidence is a question of law.” Commonwealth v. Widmer, 744 A.2d 745,

751 (Pa. 2000). When reviewing a sufficiency of the evidence claim we are

guided by the following legal precepts:

         As this case involves a question of law, our scope of review
         is plenary. Our standard of review is de novo.

                                 *    *    *

         [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict.      [A]ll of the evidence and any
         inferences drawn therefrom must be viewed in the light
         most favorable to the Commonwealth as the verdict
         winner.



the sufficiency of the evidence can be raised for the first time on appeal.
See Pa.R.Crim.P. 606(A)(7); Commonwealth v. McCurdy, 943 A.2d 299,
301 (Pa. Super. 2008) (defendant did not waive sufficiency claim because he
failed to raise it in the trial court).




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                                 *    *    *

        In applying this standard, [the reviewing court must] bear
        in mind that: the Commonwealth may sustain its burden
        by means of wholly circumstantial evidence; the entire trial
        record should be evaluated and all evidence received
        considered, whether or not the trial court’s ruling thereon
        were correct; and the trier of fact, while passing upon the
        credibility of witnesses and the weight of the proof, is free
        to believe all, part, or none of the evidence.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(quotation marks and citations omitted).

     Pennsylvania’s DUI statute provides, in relevant part:

        (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.

                                 *    *    *

        (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.

75 Pa.C.S. § 3802(a)(1), (b).

     It is well settled that:

        under Pennsylvania law, an eyewitness is not required to
        establish that a defendant was driving, operating, or was
        in actual physical control of a motor vehicle.        The
        Commonwealth can establish through wholly circumstantial


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         evidence that a defendant was driving, operating or in
         actual physical control of a motor vehicle.

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

Moreover, “[i]n 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.” Commonwealth v. Brotherston, 888 A.2d 901, 905 (Pa.

Super. 2005) (citation omitted).

      In the case sub judice, Officer Dudick testified that he observed

Appellant in the car stopped in the middle of the road. N.T. Trial, 4/28/15,

at 14.   As he approached, the car began to move.         Id. at 15.   It then

“veered to the right, and the front passenger tire struck the curb.”       Id.

Officer Dudick then saw Appellant exit the car stumbling. Id. at 16. He also

noted that Appellant had bloodshot eyes and smelled like alcohol. Id. The

trial court, as the fact finder, was free to accept all of Officer’s Dudick’s

testimony.     See Ratsamy, 934 A.2d at 1237. Thus, we conclude that the

trial court was well within its purview to conclude that Officer Dudick’s

testimony was sufficient to establish that Appellant operated the vehicle in

question based upon the officer’s eyewitness observations of Appellant, the

location of her car in the middle of the road, and the movement of the

vehicle as he approached it. Brotherston, 888 A.2d at 905; Johnson, 833

A.2d at 263.

      Therefore, viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, we conclude that the evidence was


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sufficient to support Appellant’s DUI convictions. See Ratsamy, 934 A.2d

at 1235-36. Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2017




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