Com. v. George, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
CIERRA NICOLE GEORGE
Appellant No. 546 WDA 2015
Appeal from the Judgment of Sentence March 3, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011848-2014
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 14, 2015
Appellant, Cierra Nicole George, appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
her bench trial convictions for three counts of driving under the influence of
alcohol or a controlled substance (“DUI”), and one count each of reckless
driving, driving vehicle at safe speed, and driving on roadways laned for
traffic.1 We affirm.
The relevant facts and procedural history of this case are as follows.
On May 16, 2014, at approximately 1:00 a.m., Trooper Roland
Shannonhouse was on routine patrol when he received a dispatch to a hit-
____________________________________________
1
75 Pa.C.S.A. § 3802(a)(1), (c); 3736(a); 3361; 3309(1), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
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and-run crash that occurred near the Squirrel Hill Tunnels in Pittsburgh.
Upon his arrival on the scene, Trooper Shannonhouse saw one vehicle and
the driver of the vehicle. Trooper Shannonhouse determined a two-car
crash had occurred, but the other driver had fled the scene.
Meanwhile, Corporal Jonathan Rush, who was also on routine patrol
that morning, received a dispatch to a nearby crash on the ramp of the
Homestead/Squirrel Hill exit off Interstate 376. The ramp prohibits
pedestrian traffic and serves solely as access for the highway. Corporal
Rush observed a disabled dark-colored SUV toward the right side of the
ramp. The vehicle was obstructing the lane of travel. Corporal Rush saw
the vehicle had flat front and rear tires and minor damage to the front of the
car; the damage was significant enough to preclude a driver from continuing
to drive the vehicle. The only other individuals at the scene were two
paramedics and Appellant. Corporal Rush approached Appellant and noticed
she appeared intoxicated. Specifically, Corporal Rush smelled an odor of
alcohol emanating from Appellant and observed that Appellant was unsteady
on her feet. Corporal Rush placed Appellant in his patrol car and radioed
Trooper Shannonhouse for assistance.
When Trooper Shannonhouse arrived on scene, he observed a disabled
vehicle on the ramp of the highway with front-end damage, rear-end
damage, and sideswiping damage on the driver’s side. Trooper
Shannonhouse noticed Corporal Rush, two paramedics, and Appellant were
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the only individuals present at the accident site. Trooper Shannonhouse
spoke with Appellant, and Appellant indicated she was en route to her
residence from a friend’s house. Appellant also said she was unaware she
had hit anything or anyone. Trooper Shannonhouse saw Appellant’s eyes
were red and bloodshot, and Appellant was unsteady on her feet. Trooper
Shannonhouse also smelled alcohol on Appellant. Based on her signs of
intoxication, Trooper Shannonhouse suspected Appellant was incapable of
safe driving. Trooper Shannonhouse declined to conduct a field sobriety test
due to the location of the vehicle and insufficient space on the ramp to
perform the test. Trooper Shannonhouse arrested Appellant and transported
her to the hospital for a blood draw. Appellant had a blood alcohol content
(“BAC”) of 0.233%.
The Commonwealth charged Appellant with DUI and related offenses.
On March 3, 2015, Appellant proceeded to a bench trial. At the conclusion
of trial, the court found Appellant guilty of two counts of DUI—general
impairment, one count of DUI—highest rate of alcohol, and one count each
of reckless driving, driving vehicle at safe speed, and driving on roadways
laned for traffic.
That day, the court sentenced Appellant to four (4) days at a DUI
alternative to jail program, and a concurrent period of six (6) months’
probation, for Appellant’s DUI—highest rate of alcohol conviction. The court
imposed no further penalties for Appellant’s remaining convictions.
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Appellant timely filed a notice of appeal on April 2, 2015. On April 8, 2015,
the court ordered Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Following a grant of extension,
Appellant timely filed her concise statement on June 25, 2015.
Appellant raises one issue for our review:
DID THE COMMONWEALTH PRESENT SUFFICIENT
EVIDENCE TO CONVICT [APPELLANT] OF DRIVING UNDER
THE INFLUENCE OF ALCOHOL?
(Appellant’s Brief at 5).
When examining a challenge to the sufficiency of evidence:
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.
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Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
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 asserts the
Commonwealth provided no eyewitness observations of Appellant sitting
behind the wheel of the vehicle or even sitting in the vehicle at all.
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 insists
her statements to Trooper Shannonhouse were “vague” and could have
referred to other incidents unrelated to the accident at issue. Appellant
suggests the probative value of her statements to Trooper Shannonhouse is
weak because she was intoxicated when she made them. Appellant
contends her mere presence at the scene was insufficient circumstantial
evidence of guilt. Appellant concludes the Commonwealth’s evidence was
insufficient to establish Appellant had actual physical control of the vehicle
necessary to sustain her DUI convictions, and this Court must reverse her
DUI convictions and vacate the judgment of sentence. We disagree.
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.—
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(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.
* * *
(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.A. § 3802(a)(1), (c). 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 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 travel lane on public street behind second car involved in accident;
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reasonable inference was that defendant drove vehicle to scene; vehicle did
not suddenly emerge from nowhere onto travel lane of 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; police also observed defendant
leaning against driver’s side door of vehicle).
Instantly, the trial court analyzed Appellant’s sufficiency challenge as
follows:
It is early in the morning on May 16, 2014. [Corporal]
Jonathan Rush’s radio crackles with a new call—crash
westbound on 376. He responds to the
Homestead/Squirrel Hill exit ramp on the downtown
Pittsburgh side of the Squirrel Hill tunnel. There is a dark
colored SUV…disabled right in the only lane of travel. It
cannot be driven as its tires were flat. There was some
minor damage to the front. A paramedic vehicle is there
along with [two] medics. Another person is also there—
[Appellant]. [Corporal] Rush approached her. She
smelled of alcohol. She was not steady on her feet.
[Corporal] Rush detained her by putting her in the back
seat of his patrol car and called for help.
Help arrived in the form of Trooper Shannonhouse. He
saw [Appellant] and a vehicle parked in the middle of the
one lane exit ramp. He approached [Appellant]. She told
[Trooper] Shannonhouse that “she was [en] route to her
residence coming from a friend’s home on the North Side.”
[N.T. Trial, 3/3/15, at 22.] She then added that “she was
unaware that she had hit anything or anyone.” [Id.] She
was then removed from that patrol car and escorted back
to [Trooper] Shannonhouse’s vehicle. This transfer
allowed him to make certain observations. Her walk was
unsteady. There was a strong odor of alcohol about her.
Her eyes were red and bloodshot. The dynamics of the
scene contributed to the lack of field sobriety exercises.
Within 20 minutes, she was taken from the scene and
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entered a hospital for a blood draw. That was done and
the results showed her blood alcohol level to be [0.233%].
As we all know, circumstantial evidence is based upon
inferences from established facts. A fair and reasonable
inference to be drawn is that [Appellant] was driving the
vehicle…. When police arrive they see a car in the middle
of an exit ramp that can’t be driven away. It will need [to
be] towed. There is one person there who is being
attended to by paramedics. That person is approached
and asked what happened. Her response [implies] that
she was driving the now disabled car. …
(Trial Court Opinion, filed July 21, 2015, at 2-3). Additionally, at the
conclusion of trial, the court expressly stated it found Corporal Rush and
Trooper Shannonhouse’s testimony credible. We see no reason to disrupt
the court’s determination as fact-finder. 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 to sustain her DUI convictions. See
id.; Johnson, supra; 75 Pa.C.S.A. 3802(a)(1), (c). Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2015
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