J-A05013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellee              :
                                          :
              v.                          :
                                          :
 SHATAYA MCCOY                            :
                                          :
                    Appellant             :        No. 44 WDA 2018

           Appeal from the Judgment of Sentence November 8, 2017
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005753-2017


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY GANTMAN, P.J.E.:                      FILED MARCH 14, 2019

      Appellant, Shataya McCoy, appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas, following her bench

trial convictions for two counts of driving under the influence of alcohol or a

controlled substance (“DUI”) general impairment under 75 Pa.C.S.A. §

3802(a)(1) and one count of DUI high rate of alcohol under 75 Pa.C.S.A. §

3802(b).    For the following reasons, we reverse the duplicate DUI general

impairment conviction at count six and affirm the judgment of sentence in all

other respects.

      The relevant facts and procedural history of this case are as follows. On

March 5, 2017, at 2:54 a.m., Officer Christopher Walker was on routine patrol

when he received a dispatch to the scene of a motor vehicle accident. The

911 report stated the caller was crying and informed the dispatcher that her
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vehicle had crashed into a pole and her legs were broken. The 911 report also

contained the name “McCoy” and the caller’s phone number. Officer Walker

arrived on scene approximately five minutes later and observed Appellant

lying in the street clutching her legs. The officer noticed Appellant’s right leg

was bleeding, she had a bump on her head, and she appeared to have

urinated. Appellant’s speech was slurred, and the officer detected a faint odor

of alcohol on her breath. The officer observed a silver Hyundai Sonata across

the street with heavy front-end damage. Appellant said she had consumed

one drink. Officer Walker did not observe any other person at the accident

scene. Due to Appellant’s injuries, the officer did not perform field sobriety

tests.    Appellant was transported to the hospital and a blood draw was

performed at 3:44 a.m.     Officer Walker obtained a search warrant for the

blood draw, which showed Appellant’s blood alcohol content (“BAC”) was

0.154%.

         The Commonwealth charged Appellant with multiple DUI offenses.

Appellant proceeded to a bench trial on November 8, 2017. Prior to the start

of trial, the parties discussed the admissibility of the 911 report.         The

Commonwealth indicated that Officer Walker was prepared to testify about

the 911 report, unless the court required a custodian to authenticate the

report, in which case the Commonwealth would request a continuance to

obtain a custodian of records. Defense counsel objected to the admission of

the 911 report on hearsay grounds. Defense counsel argued there was no


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way to know if Appellant had been the caller or if someone else involved in

the accident had made the call. The Commonwealth claimed the 911 report

was admissible under the business record or present sense impression

exceptions to the rule against hearsay. The court said it would admit the 911

report as a business record.

       The Commonwealth called Officer Walker as a witness, who testified,

inter alia, about his observations of the accident scene and interaction with

Appellant. Officer Walker also testified the 911 report is routine procedure,

which a dispatcher generates for every 911 call. Officer Walker explained how

each 911 report lists the name of the caller and the caller’s phone number at

the bottom of the report. Here, the report said the caller indicated her vehicle

had crashed into a pole and her legs were broken. The report listed the name

“McCoy” at the bottom, which is Appellant’s last name, and Appellant’s phone

number. (See N.T. Trial, 11/8/17, at 7-24). After Officer Walker’s testimony,

the Commonwealth and defense rested.1

       The court convicted Appellant of two counts of DUI general impairment

and one count of DUI high rate of alcohol. Appellant proceeded immediately

to sentencing. The court sentenced Appellant for the DUI high rate of alcohol

conviction to 45 days’ house arrest with a concurrent six months’ probation.

Both DUI general impairment convictions merged with the DUI high rate of


____________________________________________


1 The Commonwealth withdrew counts one, two and three of the criminal
information, charging Appellant with DUI involving a minor occupant.

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alcohol conviction for sentencing purposes.      Appellant timely filed post-

sentence motions on November 13, 2017, which the court denied on

December 4, 2017. On January 3, 2018, Appellant timely filed a notice of

appeal. The court ordered Appellant, on January 8, 2018, to file a concise

statement of errors complained of on appeal, which Appellant timely filed on

March 12, 2018, after the court granted her an extension.

      Appellant raises three issues for our review:

         WERE [APPELLANT’S] RIGHTS UNDER THE DOUBLE
         JEOPARDY CLAUSE OF THE FIFTH AMENDMENT OF THE U.S.
         CONSTITUTION AND ARTICLE 1, § 10 OF THE
         PENNSYLVANIA CONSTITUTION VIOLATED BECAUSE SHE
         WAS CHARGED AND CONVICTED OF TWO SEPARATE DUI
         OFFENSES, EVEN THOUGH THERE WAS ONLY ONE
         INCIDENT?

         DID THE TRIAL COURT ABUSE ITS DISCRETION IN
         ADMITTING THE 911 CALL REPORT OVER DEFENSE
         OBJECTION, AS IT WAS INADMISSIBLE HEARSAY AND
         IRRELEVENT?

         WAS    THE   EVIDENCE…INSUFFICIENT  TO   SUSTAIN
         [APPELLANT’S]    DUI    CONVICTIONS    AS    THE
         COMMONWEALTH      DID  NOT   PROVE,  BEYOND    A
         REASONABLE DOUBT, THAT SHE DROVE THE VEHICLE?

(Appellant’s Brief at 6).

      In her first issue, Appellant argues the Commonwealth charged her with

two counts of DUI general impairment at counts five and six, respectively.

Appellant asserts both charges arose from the same, single incident of criminal

conduct. Appellant claims the only difference between the charges at count

five and count six is that the Commonwealth included language at count five


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indicating there was an accident resulting in bodily injury, serious bodily injury

or death of another person or damage to a vehicle or other property.

Appellant insists this language is relevant to a penalty enhancement provided

at 75 Pa.C.S.A. § 3804(b)(1), but not a separate substantive crime for which

Appellant can be charged.             In other words, Appellant maintains the

Commonwealth should have charged her with only one count of DUI general

impairment, which would have been subject to the “accident resulting in bodily

injury” enhancement per Section 3804(b)(1).            Appellant concludes the

duplicate DUI charges at count five and count six, under Section 3802(a)(1)

violated double jeopardy, and this Court must vacate one of the DUI general

impairment convictions and remand for resentencing on the remaining DUI

general impairment conviction, with the relevant penalty enhancement.2 We

agree Appellant is entitled to some relief.

       “[A]n appeal grounded in double jeopardy raises a question of

constitutional law. This court’s scope of review in making a determination on

a question of law is, as always, plenary. As with all questions of law, the

appellate standard of review is de novo.” Commonwealth v. Kearns, 70

A.3d 881, 884 (Pa.Super. 2013), appeal denied, 624 Pa. 663, 84 A.3d 1063

(2014).

          The Double Jeopardy Clause, applicable to the States
          through the Fourteenth Amendment, provides that no
____________________________________________


2Appellant does not contest, in this issue, her conviction at count four for DUI
high rate of alcohol.

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           person shall be subject for the same offense to be twice put
           in jeopardy of life or limb.      Furthermore, the Double
           Jeopardy Clause protects against a second prosecution for
           the same offense after acquittal. It protects against a
           second prosecution for the same offense after conviction.
           And it protects against multiple punishments for the same
           offense.

Commonwealth v. Jackson, 10 A.3d 341, 344-45 (Pa.Super. 2010)

(internal citations omitted).

      The Vehicle Code defines the offense of DUI, in relevant part, as follows:

           § 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.

                                   *     *   *

             (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.A. § 3802(a)(1), (b).        At the time of Appellant’s offenses, the

Vehicle Code provided varying penalties for DUI offenses, in relevant part, as

follows:

           § 3804. Penalties

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                                   *    *    *

           (b) High rate of blood alcohol; minors; commercial
           vehicles and school buses and school vehicles;
           accidents.—Except as set forth in subsection (c), an
           individual who violates section 3802(a)(1) where there
           was an accident resulting in bodily injury, serious bodily
           injury or death of any person or damage to a vehicle or
           other property or who violates section 3802(b), (e) or (f)
           shall be sentenced as follows:

              (1) For a first offense, to:

                   (i) undergo imprisonment of not less than 48
                   consecutive hours;

                   (ii) pay a fine of not less than $500 nor more than
                   $5,000;

                   (iii) attend an alcohol highway     safety   school
                   approved by the department; and

                   (iv) comply with all drug and alcohol treatment
                   requirements imposed under sections 3814 and
                   3815.

75 Pa.C.S.A. § 3804(b) (effective July 9, 2012 to July 19, 2017).

     Significantly, the Commonwealth cannot charge a defendant with

multiple violations of the same DUI provision for a single criminal act.

Commonwealth v. Farrow, 168 A.3d 207 (Pa.Super. 2017). In Farrow,

the Commonwealth charged the appellant with three counts of DUI general

impairment under Section 3802(a)(1), arising from one criminal act. Two of

those counts referenced penalty enhancements under Section 3804.         This

Court explained:

        In the future, where a single DUI offense is subject to

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         enhancements, the Commonwealth should file a criminal
         information that sets forth a single count under § 3802.10
         Enhancements under § 3804 may be added as subparts or
         subparagraphs, as appropriate.

            10  To be clear, the Commonwealth may charge
            separate counts, as appropriate, where the conduct at
            issue exposes the defendant to criminal liability under
            multiple and distinct criminal provisions found in §
            3802, such as DUI—general impairment under §
            3802(a)(1) and DUI—highest rate under § 3802(c).
            In such cases, if the Commonwealth seeks to add
            sentencing enhancements under § 3804, such
            enhancements may be added as subparts or
            subparagraphs under each count.

Id. at 216; 218 (some internal footnotes omitted).

      Instantly, the Commonwealth charged Appellant with DUI general

impairment under Section 3802(a)(1) at count five and at count six. Count

five also referenced the “accident resulting in bodily injury” penalty

enhancement at Section 3804(b). Both counts arose from the same criminal

incident involving Appellant’s motor vehicle accident on March 5, 2017. In its

Rule 1925(a) opinion, the trial court conceded: “In light of the Farrow

decision, which was issued before the trial of this matter, this [c]ourt is

constrained to conclude that Count 6, which charges the same subsection of

[Section] 3802 as Count 5, [violates] the prohibition against double jeopardy

and, as such, should be vacated.” (Trial Court Opinion, filed July 17, 2018, at

14). We agree and reverse Appellant’s DUI general impairment conviction at

count six. See Farrow, supra.

      In her second issue, Appellant argues Officer Walker was not qualified


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to testify about the 911 report.    Appellant asserts Officer Walker did not

receive or observe the 911 call that generated the 911 report.        Appellant

claims Officer Walker did not know who wrote the 911 report or if the

dispatcher accurately recorded the caller’s information. Appellant contends

admission of the 911 report was “deeply prejudicial” because it was the key

piece of evidence that established an accident had occurred.          Appellant

maintains the 911 report also linked Appellant to the accident scene, as her

phone placed the 911 call and the report mentioned that someone at the scene

had injured her leg. Appellant insists the Commonwealth used the 911 report

to suggest Appellant was at fault, even though the report did not indicate if

Appellant was the driver. Appellant concludes the court erred by admitting

the 911 report under the business record exception, and this Court must

vacate Appellant’s convictions and remand for a new trial. We disagree.

      Our standard of review concerning challenges to the admissibility of

evidence is as follows:

         Questions concerning the admissibility of evidence lie within
         the sound discretion of the trial court, and a reviewing court
         will not reverse the trial court’s decision absent a clear
         abuse of discretion. Abuse of discretion is not merely an
         error of judgment, but rather where the judgment is
         manifestly unreasonable or where the law is not applied or
         where the record shows that the action is a result of
         partiality, prejudice, bias or ill will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa.Super. 2010) (internal

citations omitted). Further, “[t]o constitute reversible error, an evidentiary

ruling must not only be erroneous, but also harmful or prejudicial to the

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complaining party.” Commonwealth v. Robertson, 874 A.2d 1200, 1209

(Pa.Super. 2005) (internal citation omitted).

         The harmless error doctrine, as adopted in Pennsylvania,
         reflects the reality that the accused is entitled to a fair trial,
         not a perfect trial. However:

            It is well established that an error is harmless only if
            we are convinced beyond a reasonable doubt that
            there is no reasonable possibility that the error could
            have contributed to the verdict. The Commonwealth
            bears the burden of establishing the harmlessness of
            the error.      This burden is satisfied when the
            Commonwealth is able to show that: (1) the error did
            not prejudice the defendant or the prejudice was de
            minimis; or (2) the erroneously admitted evidence
            was merely cumulative of other untainted evidence
            which was substantially similar to the erroneously
            admitted evidence; or (3) the properly admitted and
            uncontradicted evidence of guilt was so overwhelming
            and the prejudicial [e]ffect of the error so insignificant
            by comparison that the error could not have
            contributed to the verdict.

Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super. 2004), appeal

denied, 582 Pa. 673, 868 A.2d 1199 (2005) (internal citations and quotation

marks omitted).

      “Hearsay” is an out-of-court statement offered in evidence to prove the

truth of the matter asserted. Pa.R.E. 801(c). Generally, hearsay testimony

is inadmissible at trial. See Pa.R.E. 802. Pennsylvania Rule of Evidence 803

provides exceptions to the hearsay rule, in pertinent part, as follows:

         Rule 803.       Exceptions to the Rule Against
         Hearsay―Regardless of Whether the Declarant Is
         Available as a Witness

         The following are not excluded by the rule against hearsay,

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         regardless of whether the declarant is available as a
         witness:

                                  *     *      *

         (6) Records of a Regularly Conducted Activity. A
         record (which includes a memorandum, report, or data
         compilation in any form) of an act, event or condition if:

         (A) the record was made at or near the time by—or from
         information transmitted by—someone with knowledge;

         (B) the record was kept in the course of a regularly
         conducted activity of a “business,” which term includes
         business, institution, association, profession, occupation
         and calling of every kind, whether or not conducted for
         profit;

         (C) making the record was a regular practice of that
         activity;

         (D) all of these conditions are shown by the testimony of
         the custodian or another qualified witness, or by a
         certification that complies with Rule 902(11) or (12) or with
         a statute permitting certification; and

         (E) the opponent does not show that the source of
         information or other circumstances indicate a lack of
         trustworthiness.

Pa.R.E. 803(6). A log of police reports satisfies the business record exception.

Commonwealth v. Lopez, 57 A.3d 74 (Pa.Super. 2012), appeal denied, 619

Pa. 678, 62 A.3d 379 (2013) (holding detective’s reference to police log met

business exception to hearsay rule; moreover, detective’s testimony was

cumulative of other properly admitted evidence, so any error was harmless).

      Instantly, Officer Walker testified about the 911 report at issue, in

pertinent part, as follows:


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       [THE COMMONWEALTH]:          If you       could   just   take   a
       minute to review that (handing).

       Do you recognize that document?

       [OFFICER WALKER]:              I do.

       [THE COMMONWEALTH]:            And can you state generally
       what it is?

       [OFFICER WALKER]:           It’s just the call history we get
       whenever we get a 911 call.

       [THE COMMONWEALTH]:           Okay. And is that a kind of
       play by play of exactly what’s happening on the scene?

       [OFFICER WALKER]:              Correct.

       [THE COMMONWEALTH]:          Okay.       And    is   there
       information on that regarding who the caller would be that
       made the call to 911?

       [OFFICER WALKER]:             Yes. At the very end of the
       call, they always list the contact information of who calls,
       and it gives the last name of McCoy and phone number of
       412-999-3040.

       [THE COMMONWEALTH]:            And this is done by the 911
       dispatcher; is that correct?

       [OFFICER WALKER]:              Okay.

                                *     *      *

       [THE COMMONWEALTH]:           Now, could you tell the
       [c]ourt, indicate on there what the call was that you were
       responding to, what the caller stated?

       [OFFICER WALKER]:          Whenever the call was first
       generated, at 2:53 when it was entered, they—it was a
       female was crying saying her legs were broken, caller is
       outside in the street.

       [THE COMMONWEALTH]:            Okay.      And then taking you

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        down, I think it’s two minutes later, what was next updated
        as far as what you were responding to?

        [OFFICER WALKER]:           Caller is now saying her
        vehicle crashed into a pole. Female screamed, and line
        disconnected.

        [THE COMMONWEALTH]:         And based on your training
        and experience, do you use these [Computer Assisted
        Dispatch (“CAD”)] call logs in your routine as a police
        officer?

        [OFFICER WALKER]:            Absolutely.

        [THE COMMONWEALTH]:          And would you say you use
        them on any call that a 911 call came in for?

        [OFFICER WALKER]:            Yes.

        [THE COMMONWEALTH]:          And the information that you
        noted earlier when the document was being authenticated,
        at the end of the second page, is that your—what is your
        understanding of what the information indicates?

        [OFFICER WALKER]:              That [Appellant] is the one
        [who] called 911 to give all this information.

        [THE COMMONWEALTH]:          And what do you base that
        on?

        [OFFICER WALKER]:             That’s how they do their
        callbacks. Say if we go to a domestic and there’s no answer
        at the door. We need someone to come. They call back the
        number that the original call was generated from, and then
        they can talk back to them.

        [THE COMMONWEALTH]:           Okay.       So,  it’s  your
        understanding that the phone number and the name
        associated with it on that page is the name and the phone
        number of the caller?

        [OFFICER WALKER]:            Correct.

(N.T., 11/8/17, at 9-10; 15-16). Defense counsel objected to admission of

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the 911 report on hearsay and relevancy grounds. The trial court overruled

the objection. In its Rule 1925(a) opinion, the court explained:

           Here, as the above [excerpt] of the testimony reflects, the
           CAD reports are a log [of] 911 calls maintained in the
           regular course of business and are transmitted to the
           responding officer for the purpose of their response to the
           911 call. Officer Walker testified that he receives a CAD
           report for every 911 call he responds to. Here, he used the
           911 CAD report in question to assist in his response. Given
           Officer Walker’s testimony, it is clear that the 911 CAD
           report introduced by the Commonwealth was properly
           admitted through the business records exception to the rule
           against hearsay. This [c]ourt was well within its discretion
           in so admitting it and, as a result, this claim must fail.

(Trial Court Opinion at 8). We agree that Officer Walker was qualified, based

on his training and experience, to testify regarding the 911 report in order to

meet the business record exception. See Pa.R.E. 803(6); Lopez, supra. We

see no reason to disrupt the trial court’s evidentiary ruling.     See Young,

supra.

      Moreover, the 911 report did not identify Appellant as the driver of the

vehicle.    Officer Walker’s observations when he arrived on the scene

corroborated the information contained in the 911 report, namely, the caller’s

vehicle had crashed into a pole and the caller’s legs were injured. We cannot

agree with Appellant’s contention that admission of the 911 call was “deeply

prejudicial” because it was the “key piece of evidence” showing an accident

had occurred, where that fact was obvious to Officer Walker upon his arrival

on the scene. For these reasons, any error in admitting the 911 report was

harmless. See Lopez, supra; Robertson, supra; Passmore, supra. Thus,

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Appellant’s second issue merits no relief.

        In her third issue, Appellant states she was not in the vehicle when

police arrived on the accident scene. Appellant argues the Commonwealth

presented no evidence that she was the registered owner of the vehicle.

Appellant stresses she did not admit she was the driver of the vehicle at any

time.     Appellant emphasizes the Commonwealth failed to present any

witnesses who actually saw Appellant driving the vehicle. Appellant contends

the 911 report did not state who drove the vehicle and lacked details regarding

how many people were in the car when the accident took place. Appellant

insists there was no evidence of blood in the vehicle or between where

Appellant was lying in the street and where the vehicle was parked. Appellant

stresses that Officer Walker found her approximately 15 to 20 feet away from

the vehicle. Appellant maintains an undisclosed amount of time had passed

between when the accident occurred and when Officer Walker arrived on the

scene, so other people could have been involved in the accident and left prior

to the officer’s arrival. Appellant highlights that the 911 report referred to a

“caller” and a “female,” which suggests more than one person was involved in

the accident.     Appellant concludes the Commonwealth’s evidence was

insufficient to establish Appellant drove the vehicle, which was necessary to

sustain her DUI convictions, and this Court must reverse all of her DUI

convictions and vacate the judgment of sentence. We disagree.

        When examining a challenge to the sufficiency of evidence:


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           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 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
           trier 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. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      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).     Significantly, “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

evidence that a defendant was driving, operating or in actual physical control


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of a motor vehicle.”        Id. (holding Commonwealth presented sufficient

evidence to prove defendant was driving, operating or in actual physical

control of vehicle to sustain his DUI conviction where police arrived at accident

scene and found vehicle located on public street behind second car involved

in accident; reasonable inference was that defendant drove vehicle to scene;

vehicle did not suddenly emerge from nowhere onto public street behind

another car that had just been rear-ended; additionally, police arrived on

scene within short time and saw only defendant and occupants of second car,

who were still seated in second car).       In other words, the “actual physical

control” element of a DUI conviction is based on the totality of the

circumstances; and, if the location of the vehicle supports an inference that it

had been driven there, the location “is a key factor in a finding of actual

control.”    Commonwealth v. Brotherson, 888 A.2d 901, 905 (Pa.Super.

2005), appeal denied, 587 Pa. 719, 899 A.2d 1211 (2006).

      Instantly, the trial court reasoned as follows:

            [Appellant] challenges the sufficiency of the evidence to
            establish that she was driving the vehicle. However, her
            operation of the vehicle was clearly established by
            circumstantial evidence. At 2:54 a.m., a 911 call was placed
            by a woman who was crying and screaming and stated that
            her car crashed and she was injured. The caller gave
            [Appellant’s] last name and cell phone number. The 911
            call contained no mention of another person driving. When
            Officer Walker arrived on the scene, [Appellant] was alone
            in the street, near her car which had been damaged. There
            was no indication that anyone else had been present and
            [Appellant] never mentioned or identified anyone else as the
            driver of the vehicle. The circumstantial evidence is more
            than sufficient to establish that [Appellant] was driving the

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          vehicle.

(Trial Court Opinion at 10).           We see no reason to disrupt the court’s

determination as the trier of fact. See Hansley, supra. Viewed in the light

most favorable to the Commonwealth as verdict-winner, the evidence was

sufficient to prove Appellant was driving, operating, or in actual physical

control of the vehicle. See id.; Johnson, supra; 75 Pa.C.S.A. 3802(a)(1),

(b). Accordingly, we affirm the convictions for DUI high rate of alcohol at

count four and for the DUI general impairment at count five. We reverse the

duplicate DUI general impairment conviction at count six,3 and we affirm the

judgment of sentence in all other respects.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2019




____________________________________________


3 The Commonwealth agrees Appellant is entitled to this relief. Nevertheless,
the duplicate conviction at count six merged with count four for sentencing
purposes, so we do not need to remand for resentencing. See generally
Commonwealth v. Thur, 906 A.2d 552 (Pa.Super. 2006), appeal denied,
596 Pa. 745, 946 A.2d 687 (2008) (explaining remand for resentencing is not
required where invalid sentence does not disturb overall sentencing scheme).

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