Com. v. Hoffer, C. ( 2019 )


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  • J-S54024-19
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    CHRISTOPHER S. HOFFER                      :
    :
    Appellant               :   No. 333 MDA 2019
    Appeal from the Judgment of Sentence Entered September 19, 2018
    In the Court of Common Pleas of Lebanon County Criminal Division at
    No(s): CP-38-CR-0000463-2017
    BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
    MEMORANDUM BY LAZARUS, J.:                            FILED OCTOBER 29, 2019
    Christopher S. Hoffer appeals from his judgment of sentence, entered
    in the Court of Common Pleas of Lebanon County, after a jury found him guilty
    of two counts of driving under the influence (DUI)—controlled substance.1
    Upon careful review, we affirm.
    The facts of this case are as follows:
    At trial, the Commonwealth called Travis Martin, a paramedic with
    First Aid and Safety Patrol of Lebanon[,] as a witness. Mr. Martin
    testified that on December 14, 2016, at approximately 3:00 P.M.,
    he responded in an ambulance to a call at 4th and Pershing Streets
    in Lebanon. When he arrived, Mr. Martin found an unconscious
    male, later identified as [Hoffer], in the driver[-]side seat of a
    white sedan who was not breathing. The white sedan was
    positioned approximately four to five feet from the curb and the
    passenger[-]side window was broken. As Mr. Martin approached
    the vehicle, he observed that the engine was still running, the car
    was in drive, though not moving, and was situated on the
    ____________________________________________
    1   75 Pa.C.S.A. § 3802(d)(1)(ii); 75 Pa.C.S.A. § 3802(d)(2).
    J-S54024-19
    roadway. Mr. Martin then shifted the car into park and turned the
    car off.
    Mr. Martin observed that [Hoffer] was pale, cyanotic, diaphoretic,
    wasn’t breathing and had a faint heartbeat. Mr. Martin indicated
    that his experience informed him that symptoms exhibited by
    [Hoffer] were consistent with someone under the influence of
    opiates.
    Mr. Martin was able to remove [Hoffer] from the vehicle and place
    [him] on a stretcher in the ambulance [where] Mr. Martin’s
    partner began manual breathing on [Hoffer] and Mr. Martin
    administered Narcan in order to allow [Hoffer] to begin breathing.
    After reviving [Hoffer], Mr. Martin asked [Hoffer] standard
    questions, including what he had ingested, and [Hoffer]
    answer[ed] that he had ingested heroin.          Mr. Martin then
    transported [Hoffer] to the hospital.
    On cross-examination, Mr. Martin could not remember whether
    the vehicle was a push-start or key ignition and admitted that he
    did not include the fact that he placed the car in park and turned
    off the engine in his report. Furthermore, Mr. Martin stated that
    he did not take possession of any key or fob from [Hoffer] and he
    did not recall even seeing a key or fob on [Hoffer’s] person.
    ...
    The paramedics then transported [Hoffer] to Good Samaritan
    Hospital where Officer Bowman requested consent from [Hoffer]
    to administer a blood draw, to which [Hoffer] consented. The
    parties stipulated that the blood draw was consensual and was
    conducted in compliance with normal hospital procedures. The
    parties further stipulated that the blood samples were analyzed at
    MEDTOX Laboratories by Dr. Karla Walker and that Dr. Walker
    prepared a report detailing her determinations based on the
    sample testing. Officer Bowman then testified that morphine and
    amphetamine, both Schedule II controlled substances under
    Pennsylvania law, were found in the samples of [Hoffer’s] blood.
    On cross-examination, Officer Bowman stated that he could not
    recall whether the vehicle[’]s engine was running when he arrived
    because he was focused on [Hoffer]. Officer Bowman further
    stated that no key or fob was recovered from the scene or on
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    [Hoffer’s] person and that [Hoffer] never admitted to driving the
    vehicle.
    [Hoffer] called Casey Bossler, [Hoffer’s] girlfriend and the owner
    of the vehicle in which [Hoffer] was found, as a witness. Ms.
    Bossler testified that on December 14, 2016[,] she had driven the
    vehicle, with [Hoffer] as a passenger, to the 300 block of 4th
    Street and parked the vehicle as it was found. Ms. Bossler stated
    that she was in a hurry because she was supposed to meet a friend
    in order to attend her children’s Christmas show. [Hoffer] needed
    to go somewhere else, and was making Ms. Bossler anxious so
    she decided to quickly park the vehicle on the street and have her
    friend pick her up where she parked. Ms. Bossler believed that
    she turned the car off when she left. Ms. Bossler left [Hoffer] at
    the vehicle and claimed that he did not have a key to the car.
    Ms. Bossler stated that the vehicle is a push-start ignition in which
    a driver would need to have the key fob in order to start the
    vehicle, but [Hoffer] did not have the fob. Ms. Bossler asserted
    that she retained one of the fobs and the other was at her parents’
    house. Ms. Bossler arrived back at the scene later to find that her
    vehicle was being towed, but was able to retrieve the vehicle
    because she had the fob.
    [Hoffer] next called Joseph Blauch as a witness. Mr. Blauch
    testified that on December 14, 2016, he was walking down the
    street and found an individual slumped over in a white sedan. Mr.
    Blauch called 9-1-1 and then attempted to gain access to the
    vehicle, eventually breaking the passenger[-]side window. Mr.
    Blauch could not remember how the vehicle was situated on the
    street and he did not take notice as to whether there were any
    keys or a fob in the vehicle, but stated that the engine was not
    running when he arrived. Mr. Blauch admitted that he knew
    [Hoffer] from high school, but denied being friends with [Hoffer].
    Trial Court Opinion, 1/4/19, at 1–5 (citations to record omitted).
    At the conclusion of the trial, the jury found Hoffer guilty on both DUI
    counts. On September 19, 2018, the court sentenced Hoffer to 7 days to 6
    months’ imprisonment. On October 1, 2018, Hoffer timely filed post-sentence
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    motions.2 The court denied the motions and Hoffer timely flied his notice of
    appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors
    complained of on appeal.
    Hoffer raises the following issues for our review:
    (1)    The Commonwealth failed to present sufficient evidence at
    trial to prove beyond a reasonable doubt that Hoffer was in
    actual physical control of the operation of a motor vehicle
    while under the influence of a controlled substance[.]
    (2)    The guilty verdicts were against the weight of the evidence.
    Brief of Appellant, at 4.
    Hoffer first challenges the sufficiency of the evidence in proving that he
    was in actual physical control of the vehicle while under the influence of a
    controlled substance.
    We review Hoffer’s sufficiency of the evidence claim under the following
    standard:
    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
    [re-]weigh the evidence and substitute our judgment for [that of]
    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
    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
    ____________________________________________
    2We note that Hoffer preserved the issue that the verdict was against the
    weight of the evidence in his post-sentence motion. See Pa.R.Crim.P.
    607(A)(3).
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    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. Giordano, 
    121 A.3d 988
    , 1002-1003 (Pa. Super. 2015).
    The jury convicted Hoffer under two different subsections of section
    3802, driving under the influence—controlled substance. 75 Pa.C.S.A. §§
    3802(d)(1)(ii); 3802(d)(2). “An individual may not drive, operate or be in
    actual physical control of the movement of a vehicle” if there is any amount
    of a Schedule II controlled substance in the individual’s bloodstream that has
    not been medically prescribed to the individual. 75 Pa.C.S.A. § 3802(d)(1)(ii).
    Further, an individual may not drive, operate, or be in physical control of a
    vehicle when “[t]he individual is under the influence of a drug or combination
    of drugs to a degree which impairs the individual’s ability to safely drive,
    operate, or be in actual physical control of the vehicle.”      75 Pa.C.S.A. §
    3802(d)(2).
    An individual is in “actual physical control” of a vehicle when he or she
    is in “control of the movements of either the machinery of the motor vehicle
    or of the management of the vehicle itself, without a requirement that the
    entire vehicle be in motion.” Commonwealth v. Crum, 
    523 A.2d 799
    , 801–
    802 (Pa. Super. 1987). To prove that an individual was in actual physical
    control of the vehicle, a combination of evidence is considered, including:
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    whether the motor was running, the vehicle’s location, and any other
    additional evidence to demonstrate the individual had driven the car.
    Commonwealth v. Williams, 
    941 A.2d 14
    , 27 (Pa. Super. 2008). The
    location of a vehicle is a key factor in finding control, and a suspect location
    of   a    vehicle    supports   an   inference   that   the   vehicle   was   driven.
    Commonwealth v. Brotherson, 
    888 A.2d 901
    , 905 (Pa. Super. 2005); see
    also 
    Crum, 523 A.2d at 800
    (finding actual physical control when car was
    found parked along side of road with headlights on and motor running); see
    also Commonwealth v. Bobotas, 
    588 A.2d 518
    , 521 (Pa. Super. 1991)
    (finding actual physical control when driver was found parked in ally with
    engine running).
    Hoffer argues that the Commonwealth failed to prove that the engine
    was running, and, thus, that he was in actual physical control of the vehicle.
    We disagree. Hoffer bases his argument on the testimony of his girlfriend,
    Bossler, who stated that she parked the car and took the key fob. As a result,
    Hoffer would have been unable to start the car. N.T. Trial, 7/6/18, at 29.
    Hoffer also points to the testimony of Blauch, a high school acquaintance, who
    testified that when he approached the car, the engine was off. 
    Id. at 38-40.
    The Commonwealth, however, presented the testimony of Martin, a
    paramedic, who stated that when he responded to the scene, he found Hoffer
    in the car, unconscious, with the engine still running, and the car in drive. 
    Id. at 5-8.
    Martin explained that he had to shift the car into park and turn the
    engine off.         
    Id. at 7,
    13-14.    Further, the Commonwealth presented
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    photographs that showed the car situated on the roadway, four to five feet off
    the curb and parallel to the cross-street of the intersection. 
    Id. at 11.
    Here, the jury, as fact-finder, assessed the credibility of all witnesses
    and considered the evidence produced at trial. The jury was free to believe
    all, part or none of the evidence. 
    Giordano, supra
    at 1003. Martin clearly
    and consistently stated that when he came upon the vehicle, the engine was
    on, the car was in drive, and Hoffer’s foot was on the brake. N.T. Trial, 7/6/18,
    at 5-8. The photographic evidence also showed that the car was in a suspect
    position on the road, which supports the inference that Hoffer was driving and,
    further, demonstrates that he had actual physical control of the vehicle. 
    Id. at 11;
    see Brotherson, supra at 905. Finally, both parties stipulated that
    Hoffer’s blood contained morphine3 and amphetamine,4 a combination of
    Schedule II drugs, which impaired Hoffer’s ability to be in actual physical
    control of the vehicle.         75 Pa.C.S.A. § 3802(d)(1)(ii); 75 Pa.C.S.A. §
    3802(d)(2).
    Based on the foregoing evidence, as well as the reasonable inferences
    derived therefrom, the jury could have found Hoffer guilty on both counts of
    driving under the influence of a controlled substance. 
    Giordano, supra
    .
    Accordingly, he is entitled to no relief.
    ____________________________________________
    3   35 P.S. § 780-104(2)(i)(1).
    4   35 P.S. § 780-104(2)(iii)(1).
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    Hoffer next claims that the verdict was contrary to the weight of the
    evidence.
    We evaluate Hoffer’s weight claim under the following standard:
    A claim alleging the verdict was against the weight of the evidence
    is addressed to the discretion of the trial court. Accordingly, an
    appellate court reviews the exercise of the trial court’s discretion;
    it does not answer for itself whether the verdict was against the
    weight of the evidence. It is well[-]settled that the jury is free to
    believe all, part, or none of the evidence and to determine the
    credibility of the evidence, and a new trial based on a weight of
    the evidence claim is only warranted where the jury’s verdict is so
    contrary to the evidence that it shocks one’s sense of justice. In
    determining whether this standard has been met, appellate review
    is limited to whether the trial judge’s discretion was properly
    exercised, and relief will only be granted where the facts and
    inferences of record disclose a palpable abuse of discretion.
    Commonwealth v. Houser, 
    18 A.3d 1128
    , 1135-36 (Pa. 2011) (citations
    and internal quotation marks omitted).
    Here, Hoffer contends the jury’s verdict was against the weight of the
    evidence because “[t]he [c]ourt should have given less weight to Martin’s
    testimony because Martin could not recall how he turned off the car engine,
    and never recovered a key or key fob which would have been needed to turn
    off the engine.” Appellant’s Brief, at 12. Hoffer also claims that the court
    “should have given more weight to the testimony of Bossler[,] who testified
    that Hoffer never had a key to the car[,] and Blauch[,] who testified that the
    car’s engine was not running when he found Hoffer passed out in the white
    sedan.” 
    Id. -8- J-S54024-19
    We reiterate that it is within the sole discretion of the jury to assess the
    credibility of the evidence at trial. Here, the Commonwealth presented the
    testimony of Martin and Officer Bowman, along with photographs of the scene
    to corroborate their testimony. The jury resolved the conflicts in testimony,
    and found that the Commonwealth’s witnesses were more credible than those
    of the defense. The jury was free to believe all, part, or none of the evidence;
    thus, we find no palpable abuse of discretion.       
    Houser, supra
    ; see also
    Commonwealth v. Clay, 
    64 A.3d 1049
    , 1055 (Pa. 2013) (“Appellate review
    of a weight claim is a review of the exercise of discretion, not of the underlying
    question of whether the verdict is against the weight of the evidence.”). The
    trial court did not abuse its discretion in finding the verdict was not against
    the weight of the evidence. 
    Houser, supra
    .
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/29/2019
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