Com. v. Peck, P. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PHILLIP CARL PECK
Appellant No. 568 MDA 2014
Appeal from the Judgment of Sentence October 30, 2013
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000854-2012
BEFORE: BOWES, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED MARCH 04, 2015
Phillip Carl Peck appeals from the judgment of sentence imposed on
October 30, 2013, in the Court of Common Pleas of Lebanon County,
following his conviction on charges of DUI – highest rate of alcohol, third
offense, and DUI – general impairment, third offense.1 Peck was sentenced
to one to five years’ incarceration. Peck filed a post sentence motion
claiming the verdict was against the weight of the evidence. In addition to
challenging the weight of the evidence, in this timely appeal, he also claims
the evidence was insufficient in that the Commonwealth did not prove he
was in actual physical control of the vehicle. Following a thorough review of
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1
75 Pa.C.S. §§ 3802(c) and 3802(a)(1), respectively.
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the submissions by the parties, relevant law, and the certified record, we
affirm, albeit on different reasoning.2
We recite the salient facts as stated in the trial court’s Pa.R.A.P
1925(a) opinion.
Scott Herneisey testified that during the early morning hours of
March 2, 2012, he was home at his apartment at [XXX] West
Main Avenue in Annville. He was attempting to sleep but was
kept awake by loud music blaring outside his apartment. After
twenty to thirty minutes, he went downstairs to the street and
approached the vehicle from which the music was coming. The
vehicle’s engine was running and [Peck] was sitting in the
driver’s seat. When Herneisey knocked on the driver’s side
window and motioned for [Peck] to turn down the music, [Peck]
looked at Herneisey for a few seconds but did not turn down the
music. Herneisey testified that since [Peck] appeared to be
“drunk or messed up” and Herneisey did not want any trouble,
he contacted the police.
On cross-examination, Herneisey testified that he only knew that
the vehicle had been parked in the street for as long as the
music had been playing and that he had noticed that the brake
lights were on. Corporal Steven Werner of the Pennsylvania
State Police testified that he and Trooper Day were dispatched
for a report of a vehicle parked on West Main Street with loud
music playing and that they arrived at the scene at
approximately 3:27 that morning. Upon arriving at the scene,
they found [Peck’s] vehicle facing east on Main Street with the
engine running, the headlights and brake lights on, and [Peck]
sitting in the driver’s seat slumped over. The Troopers parked
directly in front of [Peck’s] vehicle and activated the overhead
lights of the cruiser. When they approached the vehicle, Trooper
Werner observed that the music was very loud, that the windows
were rolled up, and that [Peck] was the sole occupant. [Peck]
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2
“An appellate court may affirm a judgment or verdict for any reason
appearing of record.” Commonwealth v. Melvin, 103 A.3d 1, 19 (Pa.
Super. 2014) (citation omitted).
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was slumped over holding a cigarette in his hand. When
Corporal Werner knocked on the driver side window, [Peck]
woke up, appeared disoriented, and stared at Trooper Day, who
was on the other side of the vehicle. When Corporal Werner told
him to turn the radio down, [Peck] continued to look at the
Trooper “with a blank stare.” Corporal Werner was able to open
the door, reach in to turn off the engine, and remove the key
from the ignition.
After a time, Corporal Werner was able to awaken [Peck] and
have him step out of the car. When Corporal Werner asked
[Peck] where he was coming from, [Peck] looked in an easterly
direction. Upon further questioning, [Peck] told Corporal Werner
that he had been drinking beer and shots at the Corvette Bar,
which was located a short distance away, until between 1:30 and
2:30 a.m. He informed Corporal Werner that he had intended to
walk home from the bar, but that he was sitting in his car to
keep warm. Trooper Werner also recalled [Peck] informing him
that he had a colostomy bag and a bag to catch his urine, that
he had decided he couldn’t walk home and was going to “sleep it
off” in his car. Corporal Werner testified that the temperature
was cold that morning.
Trial Court Opinion, 6/11/2014, at 2-4.
Against this background of evidence, Peck claims there was insufficient
evidence to prove he had “actual physical control” of his car. Peck argues
actual physical control of a vehicle is demonstrated through the totality of
the circumstances including the factors of the “motor running, the location of
the vehicle, and additional evidence showing that the defendant had driven
the car.” Commonwealth v. Toland, 888 A.2d 901, 904 (Pa. Super. 2005)
citing Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003).
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Specifically, he claims there was no evidence showing he had driven the
car.3
The standard of review for claims of insufficient evidence is well-
settled. With respect to such claims, we consider the evidence in
the light most favorable to the Commonwealth as verdict winner.
Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super.
2005). In that light, we decide if the evidence and all reasonable
inferences from that evidence are sufficient to establish the
elements of the offense beyond a reasonable doubt. Id. We keep
in mind that it was for the trier of fact to determine the weight of
the evidence and the credibility of witnesses. Id. The jury was
free to believe all, part or none of the evidence. Id. This Court
may not weigh the evidence or substitute its judgment or that of
the factfinder. Id.Commonwealth v. Thur, 906 A.2d 552, 568-69 Pa. Super. 2006).
In order to convict a person of DUI, the Commonwealth must prove, in
relevant part, the defendant was either driving, operating, or in actual
physical control of the vehicle.4 See 75 Pa.C.S. 3802. In this matter, the
parties agreed that actual physical control was the element of proof at issue.
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3
The trial court asserted the evidence was sufficient to prove Peck had
driven the car. See Trial Court Opinion at 7-8. We note, however, that the
trial court misstated some of the evidence. Peck was parked on a street
adjacent to the bar where he had been drinking, N.T. Trial at 46. The
location where Peck was found was not across the street from the address
listed on his driver’s license. Peck was found on Main Street. Id. at 11. His
driver’s license carried an address on Railroad Street, id. at 47, which is
near the Lehigh Valley College. Id. at 46. However, because we affirm on
alternate grounds, any error in this regard is harmless.
4
These terms are not defined by statute. The practical difference between
operating and actual physical control of a vehicle is unclear. “The term
‘operate’ requires evidence of actual physical control of either the machinery
or the motor vehicle or the management of the vehicle’s movement, but not
(Footnote Continued Next Page)
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The fallacy of Peck’s argument is while the majority of case law
indicates some proof of movement is necessary to convict, that case law
does not address the fact that the standard jury instruction regarding actual
physical movement, does not require that finding. The standard jury
instruction is relevant here because that is what Peck asked for and is what
the jury received.
THE COURT: We’re going to go back on the record counsel to
talk about instructions, jury instructions. Anybody have any special
favorites they’d like me to give here to this jury?
[Prosecutor]: I’m fine with the standards, Your Honor.
[Defense Counsel]: I’d just ask the standards with the additional
explanation under the standard instruction as to the actual physical
control is because there’s no allegation that he was driving or in
operation but under the standard subsection which in Court’s
discretion would describe what actual physical would be, I think it’s
appropriate in this case.
N.T. Trial, 8/8/2013, at 148-49 (emphasis added).
The trial court then gave the jury the standard jury instruction
regarding actual physical control, as requested by defense counsel.
[The Court]: The statute uses the terms drive, operate,
and actual physical control because the crime of driving under
the influence can be committed not only by a person who
actually drives a vehicle, but also by one who operates or is in
actual physical control of the movement of a vehicle. A person
does not drive unless he actually has the vehicle moving, and of
course, we do not have that in this case. As with any fact,
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(Footnote Continued)
evidence that the vehicle was in motion.” Commonwealth v. Williams,
871 A.2d 254, 259 (Pa. Super. 2005).
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however, the Commonwealth may prove that the Defendant
drove the vehicle by circumstantial evidence but again, that’s not
alleged in this case. Moreover, a person may operate or be in
actual physical control of the movement of a stopped vehicle.
These terms are broader than the term drive because the law is
concerned with a threat to public safety from motorists who have
an intention of driving a vehicle immediately within their control,
as well as those who actually do drive one while they are under
the influence. While the mere fact that a Defendant was
somewhere within the passenger compartment of a vehicle, is
not by itself, enough to show he was operating or was in actual
physical control of it. You should consider all of the facts and
circumstances in deciding whether the Defendant was in physical
control of the machinery of the vehicle or was in a position to
manage its movement at the time and place alleged.
Id. at 171-72 (emphasis added).
This instruction given is, in substance, a verbatim recitation of the
standard instruction. See Pa.SSJI (Crim) 17.3802(a)(1) (2014) (last revised
April 2005). The instruction defines operate and actual physical control
together and does not require a finding that the Defendant has moved the
vehicle.5 Rather, the jury is asked to determine whether the Defendant was
in physical control of the machinery or a position to manage its movement at
the time and place alleged.
It is unclear how or when the case law and standard instruction
diverged, yet it is apparent they have. The genesis of the elements of
“motor running, location of the vehicle and additional evidence that the
defendant had driven the vehicle” appears to be Commonwealth v. Byers,
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5
Because the relevant terms, ‘drive’, ‘operate’, ‘actual physical control’, are
not defined by statute, this instruction does not contradict the statute.
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650 A.2d 468 (Pa. Super. 1994) which noted that “in a majority of cases,
the suspect location of the vehicle, which supports an inference that it was
driven, is a key factor in finding actual control.” Id. at 469 (emphasis
added). However, Byers did not discuss the standard jury instruction.
Two years later, our Supreme Court decided Commonwealth v.
Wolen, 685 A.2d 1384 (Pa. 1996). Wolen, a plurality decision,6 involved a
challenge to a supplemental instruction. Our Supreme Court quoted the
instruction given, regarding actual physical control, and noted there had
been no objection:
A driver has actual physical control of his car when he has real
bodily restraining or directing influence or dominion or regulation
over its movement or the movement of its machinery. It is not
dispositive that the driver's car was not moving and that the
driver is not making an effort to move it when the officers
arrived. A driver may be in actual physical control of his car and
therefore operating it while it is parked or merely standing still
so long as the driver is keeping the car in restraint or in a
position to regulate its movement.
Neither is it dispositive that the driver was asleep at the time
that the officers arrived. An intoxicated person seated behind the
steering wheel of a motor vehicle is a threat to the safety and
welfare of the public. The danger is less than that involved when
the vehicle is actually moving, but it does exist. While at the
precise moment the defendant was approached by the officers,
he may have been exercising no conscious volition with regard to
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6
Six Justices participated in the decision. Three Justices made up the
majority, two Justices concurred, and one dissented. The dissent did not
criticize the original jury instruction; it only criticized the supplemental
instruction which it believed directed a guilty verdict if the jury found the
defendant was actually behind the wheel of the car at the time the police
arrived.
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the vehicle, there is still a legitimate inference to be drawn that
the defendant has his choice of placing himself behind the wheel
and either starting the vehicle or permitting it to run. He,
therefore, has the actual physical control of the vehicle even
though the manner in which such control was exercised resulted
in the vehicle remaining motionless.
Id. at 1387. While this instruction is not a verbatim recitation of the current
instruction, it is very similar and it does not require proof of movement of
the car.
One year prior to Wolen, a panel of our Court decided
Commonwealth v. Woodruff, 668 A.2d 1158 (Pa. Super. 1995), in which
the sufficiency of the evidence and the jury charge were at issue. Regarding
actual physical control, Woodruff stated:
We find that appellant was in “actual physical control” under the
statute when he was found by the police. Our precedent
indicates that a combination of the following factors is required
in determining whether a person had “actual physical control;” of
an automobile” the motor running, the location of the vehicle,
and additional evidence showing that the defendant had driven
the vehicle.”
Id. at 1161.
Later in the decision, the jury charge was quoted:
The crime of driving under the influence can be committed, not
only by a person who literally drives a vehicle, but also [by] one
who operates or is in actual physical control of the movement of
a vehicle. A person does not drive, unless he actually has the
vehicle moving, however, a person may operate or be in actual
physical control of the movement of a standing vehicle. These
terms are broader than the term drive. They cover certain
situations where a person, under the influence, is a distinct
threat to public safety, even though he is not actually driving at
the time. Thus, a person operates or [is] in actual control of a
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motor vehicle, if he is in actual physical control of either the
machinery of the vehicle or of the management of the
movement of the vehicle itself.
You may consider circumstantial evidence in determining
whether the defendant was driving, operating or in actual
physical control of the movement of a vehicle. Factors that you
may consider in determining whether the defendant was in
actual control of the movement of a vehicle are[:] ... where the
vehicle was located, whether the engine was running, whether
the lights were on, whether the defendant was located or seated
in the vehicle and, specifically, whether he was seated behind
the steering wheel and, generally, whether the defendant had
control and management of the vehicle. The Commonwealth
need not prove that the vehicle was actually in motion.
Id. at 1162.
Despite the fact that this instruction says nothing about proof that the
vehicle had been moved, Woodruff held:
The first paragraph of the instruction given in the instant case
cited above, however, comports exactly to the current version of
Pennsylvania's Suggested Standard Jury Instructions. See
Pa.SSJI (Crim.) 17.3731C (1991).[7] Moreover, the 1985 version
of this instruction, which is nearly identical to the current
version, is quoted approvingly in Crum. See [Commonwealth
v.] Crum, 362 Pa.Super. [110] at 115-17, 532 A.2d [799] at
801-802. The instruction, therefore, reflects accurately our
relevant case law on the subject. See Byers, 437 Pa. Super. at
506, 650 A.2d at 470.
Id.8
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7
75 Pa.C.S. § 3731 was the prior version of Section 3802.
8
In Wolen, our Supreme Court criticized that portion of the charge that
spoke of the potential dangers to the public at large. Rather, it stated that
(Footnote Continued Next Page)
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The charge given in Woodruff is substantially similar to the charge
given instantly, and Woodruff approved of the charge while indicating that
had been the standard charge for at least the ten previous years.9
Accordingly, the charge given in the instant matter has currently been
accepted and approved of for approximately 30 years.
We return now to the argument before us. Peck claims because there
was no evidence his car had moved, his conviction is unsustainable.
However, the jury was never asked to determine that fact. Rather, the jury
was asked to determine whether Peck was in “physical control of the
machinery or was in a position to manage it’s movement at the time and
place alleged.” See Jury Charge, supra. There is no question that the
evidence produced at trial supports a determination that Peck was in a
position to manage the movement of the car at the time and place alleged.
Peck was behind the wheel, had started the car, turned on the headlights,
and had his foot on the brake. The only thing left to actually move the car
was to put it in gear. Accordingly, the jury verdict is based upon sufficient
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(Footnote Continued)
there is a per se threat to the public, “even if there are no other members of
the public immediately endangered.” Wolen, 685 A.2d 1386, n.4 (Opinion
Announcing the Judgment of the Court). Again, we note there was no
criticism of that portion of the charge that omitted consideration of
movement of the vehicle.
9
We note this time frame includes the Byers decision.
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evidence as charged. Because Peck never asked the jury to determine if he
had moved the car, he cannot complain now that that element is lacking.
Peck’s challenge to the weight of the evidence is based upon the same
argument regarding movement of the car. Therefore, this claim must also
fail.
Judgment of sentence affirmed.10
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/4/2015
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10
Although we have noted an apparent divergence between case law and
jury instructions, we take no position on which is the “proper” interpretation.
We have determined that the jury decision was consistent with both the
evidence presented and the jury instruction that was requested and which
was given.
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