Com. v. Grooms, M. ( 2016 )


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  • J-S52016-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    MIA GROOMS
    Appellant                No. 2305 EDA 2015
    Appeal from the Judgment of Sentence Entered July 9, 2015
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No: CP-51-CR-0007923-2014
    BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.
    MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 19, 2016
    Appellant Mia Grooms appeals from the July 9, 2015 judgment of
    sentence entered in the Court of Common Pleas of Philadelphia County (“trial
    court”), following her bench conviction for driving under the influence
    (“DUI”) in violation of 75 Pa.C.S.A. § 3802(d)(1)(iii) and (2). Upon review,
    we affirm.
    The facts and procedural history underlying this case are undisputed.1
    On October 16, 2011, at approximately 1:45 a.m., Inspector David Bellamy
    of the Philadelphia Police Department observed a traffic jam in the area of
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    Unless otherwise specified, these facts come from the trial court’s
    December 21, 2015 opinion.
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    2200 West Ontario Street in Philadelphia. At that time, he observed a white
    Mitsubishi Galant parked against the flow of one-way traffic.        Several
    vehicles were honking as they attempted to get past the parked Mitsubishi
    on the narrow one-way street. Inspector Bellamy observed Appellant near
    the driver’s area of the Mitsubishi.      Appellant was stumbling.     When
    Inspector Bellamy approached Appellant, she appeared hazy and her eyes
    glassy.   The keys were in the ignition and the Mitsubishi was running.
    Appellant failed to fully cooperate with Inspector Bellamy.   Appellant then
    reached inside the Mitsubishi through the open driver’s side door, took a cup
    from the center console, and poured out its contents on the road. Inspector
    Bellamy called for backup. Officer Michael McCormick responded.
    Officer McCormick approached Appellant as she was sitting in the
    driver’s seat of the Mitsubishi and asked her to step outside.        Officer
    McCormick testified “I asked her to step out. She was basically nonverbal,
    could barely stand, had trouble—swaying or sagging, however you want to
    call it, and she was—we had to direct her to lean up against another vehicle
    to keep her from falling on the ground.” Trial Court Opinion, 12/21/15 at 5
    (record citations omitted).
    Appellant eventually was charged with and convicted of the above-
    mentioned DUI offenses and sentenced to 12 to 24 months’ imprisonment
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    under Subsection 3802(d)(1)(iii) and 24 months’ probation for Subsection
    3802(d)(2).2
    On appeal, Appellant raises two issues for our review. First, Appellant
    argues that the evidence was insufficient to sustain her conviction under
    Subsection       3802(d)(1)(iii)       (controlled   substance)   because    the
    Commonwealth failed to establish that she operated or was in physical
    control of the movement of the Mitsubishi.3 Second, Appellant argues that
    ____________________________________________
    2
    We observe that Appellant had multiple prior DUIs. See N.T. Sentencing,
    5/19/15 at 7.
    3
    “A claim challenging the sufficiency of the evidence is a question of law.”
    Commonwealth v. Widmer, 
    744 A.2d 745
    , 751 (Pa. 2000).
    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
    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. Antidormi, 
    84 A.3d 736
    , 756 (Pa. Super. 2014),
    appeal denied, 
    95 A.3d 275
    (Pa. 2014).
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    her sentences under Subsections 3802(d)(1)(iii) and 3802(d)(2) should
    merge for sentencing purposes.
    With respect to Appellant’s sufficiency of the evidence claim, after
    careful review of the record, and the relevant case law, we conclude that the
    trial court accurately and thoroughly addressed the issue on appeal.        See
    Trial Court Opinion, 12/21/15, at 8-12. Accordingly, Appellant is not entitled
    to relief on this issue.
    Appellant next argues that trial court erred in sentencing her both
    under Subsections 3802(d)(1)(iii) and 3802(d)(2) because her sentences
    should have merged. We disagree.
    Appellant’s merger claim implicates the legality of sentence and thus
    our standard of review is de novo and the scope of review is plenary. See
    Commonwealth v. Collins, 
    764 A.2d 1056
    , 1057 n.1 (Pa. 2001).
    Section 9765 of the Sentencing Code provides:
    No crimes shall merge for sentencing purposes unless the crimes
    arise from a single criminal act and all of the statutory elements
    of one offense are included in the statutory elements of the
    other offense. Where crimes merge for sentencing purposes, the
    court may sentence the defendant only on the higher graded
    offense.
    42 Pa.C.S.A. § 9765.       Merger, therefore, is appropriate only when two
    distinct criteria are satisfied: (1) the crimes arise from a single criminal act;
    and (2) all of the statutory elements of one of the offenses are included
    within the statutory elements of the other. “[T]he plain language of Section
    9765 precludes courts from merging sentences when each offense contains a
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    J-S52016-16
    statutory element that the other does not.” 4 Commonwealth v. Raven, 
    97 A.3d 1244
    , 1250 (Pa. Super. 2014).               This rule applies irrespective of
    whether the offenses are codified in different statutes or in different
    subsections of the same statute.          See 
    id. at 1251-52
    (different statutes);
    Commonwealth v. Rhoades, 
    8 A.3d 912
    , 918 (Pa. Super. 2010) (different
    subsections of the same statute).
    Subsection 3802(d)(1)(iii) provides:
    An individual may not drive, operate or be in actual physical
    control of the movement of a vehicle under any of the following
    circumstances:
    (1) There is in the individual’s blood any amount of a:
    (i) Schedule I controlled substance, as defined in the
    act of April 14, 1972 (P.L. 233, No. 64), known as
    The Controlled Substance, Drug, Device and
    Cosmetic Act;
    (ii) Schedule II or Schedule III controlled substance,
    as defined in The Controlled Substance, Drug, Device
    and Cosmetic Act, which has not been medically
    prescribed for the individual; or
    (iii) metabolite of a substance under subparagraph
    (i) or (ii).
    ____________________________________________
    4
    To the extent Appellant relies upon Commonwealth v. Williams, 
    871 A.2d 254
    (Pa. Super. 2005) for the proposition that Subsection
    3802(d)(1)(iii) and Subsection 3802(d)(2) merge for sentencing purposes,
    such reliance is misplaced because Williams is distinguishable from the
    instant case. In Williams, we concluded that Subsection 3731(a)(1) and
    (a)(4) of the predecessor version of the DUI statute represented an
    alternative basis for finding culpability for a single criminal act. Williams
    involved DUI charges stemming from consumption of alcohol.               Here,
    Appellant’s crime involved a controlled substance, i.e., drugs, which can vary
    in form and substance.
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    75 Pa.C.S.A. § 3802(d)(1) (footnote omitted).           Subsection 3802(d)(2)
    provides:
    An individual may not drive, operate or be in actual physical
    control of the movement of a vehicle under any of the following
    circumstances:
    ....
    (2) The 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 movement of the vehicle.
    75 Pa.C.S.A. § 3802(d)(2).
    Each of these subsections contains an element that the other does not.
    Subsection 3802(d)(1)(iii) requires proof that the defendant has any amount
    of a Schedule I, II or III controlled substance in his or her blood. Subsection
    3802(d)(2) requires proof that the defendant is under the influence of a drug
    or combination of drugs to a degree which impairs his or her ability to safely
    drive, operate or be in actual physical control of the movement of his or her
    vehicle.    Given these disparate elements, the Commonwealth can prove a
    violation of one subsection without proving a violation of the other. If the
    Commonwealth proves that the defendant has any amount of Schedule I, II
    or III controlled substance in his or her blood but fails to prove that he or
    she was under the influence, this will sustain a Subsection 3802(d)(1)(iii)
    violation but not a Subsection 3802(d)(2) violation. On the other hand, if
    the Commonwealth proves that the defendant is under the influence of a
    non-Schedule I, II, or III drug to a degree that impairs his or her ability to
    safely drive his or her vehicle, this will result in a Subsection 3802(d)(2)
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    J-S52016-16
    violation but not a Subsection 3802(d)(1)(iii) violation. Accordingly, the trial
    court did not err in refusing to merge Appellant’s Subsection 3802(d)(1)(iii)
    violation with his Subsection 3802(d)(2) violation. See 
    Raven, supra
    and
    
    Rhoades, supra
    .
    In sum, we dispose of Appellant’s sufficiency of evidence claim based
    on the reasons outlined in the trial court’s December 21, 2015 opinion. We
    direct that a copy of the trial court’s December 21, 2015 opinion be attached
    to any future filings in this case.   We also conclude that Appellant is not
    entitled to relief on the merger issue.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 9/19/2016
    -7-
    Circulated 08/30/2016 03:39 PM
    IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
    FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
    CRIMINAL TRIAL DIVISION
    COMMONWEALTH                               OF PENNSYLVANIA        CP-51-CR-0007923-2014
    v.   FILED
    DEC 21 2015         :        SUPERIOR COURT
    MIA GRooMsCrimina\ App~a\~ Unit :           NO. 2305 EDA 2015
    FirstJudicia\ 01stnct of PA
    OPINION
    THOMAS STREET, J.                                                              December 9, 2015
    I.              OVERVIEW AND PROCEDURAL HISTORY
    This is an appeal by the Defendant, Mia Grooms, of this court's Judgment of Sentence
    finding the Defendant guilty of Driving Under the Influence. On October 16, 2011, Philadelphia
    Police Officers encountered the Defendant at the 2200 block of West Ontario Street at 1 :45 a.m.
    The Defendant's vehicle was facing the wrong direction in a one-way street and blocking traffic.
    The Defendant did not cooperate with officers and showed signs of intoxication. The Defendant
    was arrested, taken into custody, and later charged with Driving Under the Influence (DUI):
    General Impairment/Incapable of Driving Safely- First Offense,1 Driving Under the Influence
    (DUI): Controlled Substance or Metabolite First Offense,2 Driving Under the Influence:
    Controlled Substance- Impaired Ability - First Offense,3 and Driving Under the Influence:
    Controlled Substance- Combination of Alcohol/Drugs- First Offense.4           CP-51-CR-0007923-2014 Comm v. Grooms, Mia
    Oprnion
    1
    75   Pa.   C.S.   §   3802   §§ A 1
    2
    75   Pa.   C.S.   §   3802   §§ D 1
    11111111111111111 11111 111
    3
    7385093831
    75   Pa.   C.S.   §   3802   §§ D2
    4
    75   Pa.   C.S.   §   3802   §§ D3
    On March 4, 2015, the Defendant filed a Motion to Dismiss. On the same day, this court
    held a hearing on the matter and at the conclusion of the hearing denied the Defendant's Motion
    Motion to Dismiss.                A non-jury trial was held at which the Defendant was found guilty of
    Driving Under the Influence (DUI): Controlled Substance or Metabolite First Offense5 and
    Driving Under the Influence: Controlled Substance- Impaired Ability - First Offense.6
    Sentencing was deferred pending a CRN and Pre-Sentence Investigation. On July 9, 2015, the
    Defendant was sentenced to one (1) to two (2) years of incarceration at a state correctional
    institution for Driving Under the Influence (DUI): Controlled Substance or Metabolite-First
    Offense7 and two (2) years of reporting probation for Driving Under the Influence (DUI):
    Controlled Substance Impaired Ability- First Offense8 to run consecutively with credit for time
    served. The Defendant was also deemed RRRI eligible at nine (9) months.
    On July 20, 2015, the Defendant filed a Post-Sentence Motion. On July 23, 2015, the
    Defendant filed a Notice of Appeal to the Superior Court. On August 14, 2015, this court denied
    the Defendant's Post-Sentence Motion without a hearing. On September 14, 2015, after notes of
    testimony were made available, this court ordered the Defendant to file a Concise Statement of
    Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b) within twenty-one (21) days.
    On October 5, 2015, the Defendant filed a Concise Statement of Errors.
    II.           FACTUAL HISTORY
    Inspector David Bellamy, currently assigned to audits and inspections, testified that on
    October 16, 2011, at approximately 1 :45 a.m. he was on duty as a Philadelphia police officer.
    5
    75 Pa. C.S. §   3802   §§   Dl
    6
    75 Pa. C.S. §   3802   §§   D2
    7
    75 Pa. C.S. §   3802   §§   DI
    8
    75 Pa. C.S. §   3802   §§   D2
    2
    (N.T.   3/4/15 p. 28).9 Inspector Bellamy stated that he was Captain of the 181h District at that
    time and was going to do an unannounced compliance check at 1 :55 a.m. Id While en route to
    that check, Inspector Bellamy came to the area of 2200 West Ontario Street in Philadelphia,
    Pennsylvania. 
    Id. At that
    time, he encountered a woman whom he identified as the Defendant.
    
    Id. Inspector Bellamy
    observed a traffic jam caused by the Defendant's white Mitsubishi Galant
    blocking eastbound traffic at the 2200 block of Ontario Street. (N .T. 3/4/15 p. 28). He explained
    that Ontario is a one-way street and that three (3) or four (4) cars ahead of the Defendant were
    trying to get by but they could not because the street was too small and the Defendant's vehicle
    was blocking traffic. (N.T. 3/4/15 pp. 28-29).
    Inspector Bellamy stated that after he noticed the Defendant's vehicle blocking traffic he
    went to her car and observed the situation more closely. (N.T. 3/4/15 p. 29). "I saw the
    [Defendant] got out of the car, and she was stumbling and kind of hazy and everything like that,
    and I suspected her of being inebriated." 
    Id. Inspector Bellamy
    asked for the Defendant's
    identification but she did not fully cooperate. 
    Id. He stated
    that the Defendant took a little
    plastic cup inside of the vehicle and poured the liquid out underneath her car. 
    Id. He further
    stated that she was "kind of out of it" and he called for backup. 
    Id. Backup arrived
    three (3) to
    four (4) minutes later and Inspector Bellamy remained on the scene for about ten (10) to fifteen
    (15) minutes to explain to the arriving officers what he had observed. (N.T. 3/4/15 pp. 29-30).
    Inspector Bellamy testified that he has been a Philadelphia police officer for twenty (20)
    years and has made numerous arrests for Driving Under the Influence (DUI), alcohol or other
    substance, but less than a hundred (100) times. (N.T. 3/4/15 p. 30). He has observed intoxicated
    individuals hundreds of times. 
    Id. Inspector Bellamy
    stated that the Defendant was outside of
    9All references to the record refer to the notes of testimony for the motions hearing and non-jury trial recorded on
    March 4, 2015.
    3
    her vehicle and was not fully cooperating.     
    Id. "She was
    stumbling a little bit and her eyes were
    glassy, and just not cooperating at all. The individuals [in the cars] were just blowing [their
    horns] and she was outside the vehicle." 
    Id. On cross-examination,
    Inspector Bellamy reiterated that he was at the 2200 block of
    Ontario Street at 1 :45 a.m. on the date in question. (N.T. 3/4/15 p. 31 ). He explained that there
    was a traffic jam on Ontario, a one-way street, and that the Defendant's car was going in the
    opposite direction of traffic while other vehicles were trying to get around her car. 
    Id. Inspector Bellamy
    noticed this on his right-hand side as he traveled southbound on 22"d Street. 
    Id. Inspector Bellamy
    stated that when he first saw the Defendant she was outside of her car
    stumbling around the driver's area with the door open while other drivers were honking at her.
    (N.T. 3/4/15 p. 32). He clarified that the Defendant's car was stopped, she was not in the car, but
    rather standing and stumbling around the car when he pulled up. 
    Id. Additionally, Inspector
    Bellamy testified that there was no one else in the white
    Mitsubishi and no one with him at the time. 
    Id. Inspector Bellamy
    stated that there were
    approximately two (2) or three (3) other cars standing and blowing their horn in the direction
    where Ontario Street runs eastbound. (N.T. 3/4/15 p. 33). He testified that he observed the
    Defendant for about thirty (30) or forty (40) seconds prior to initiating an investigation as he was
    trying to notice what the commotion was and then saw the car being driven or parked the wrong
    way. 
    Id. Inspector Bellamy
    clarified that he did not actually see the Defendant drive because the
    car was stopped. 
    Id. On redirect
    examination, Inspector Bellamy testified that the vehicle was running and the
    keys were in the ignition. (N.T. 3/4/15 pp. 33-34). Inspector Bellamy stated that the Defendant
    4
    went back into the vehicle and came out with a beverage. (N.T. 3/4/15 p. 34). She then poured
    the beverage out underneath the vehicle and would not cooperate with Inspector Bellamy. 
    Id. On recross-examination,
    Inspector Bellamy stated in more detail that the Defendant went
    back into her vehicle and retrieved a beverage that was in a plastic cup from the middle console.
    (N.T. 3/4/15 p. 34). When asked whether the beverage was on the driver's side, Inspector
    Bellamy stated no, but that "the driver had full control where she got it." (N.T. 3/4/15 p. 35).
    When asked whether the Defendant took the keys out and handed them to the Inspector, he stated
    that he could not remember. 
    Id. When asked
    whether he could remember the Defendant,
    Inspector Bellamy testified in the affirmative. 
    Id. He stated
    that she had a short haircut, brown
    skin, and was a female. 
    Id. Inspector Bellamy
    responded that he could not remember how many
    individuals he had arrested for DUI since the Defendant's arrest. (N.T. 3/4/15 p. 36).
    Philadelphia Police Officer Michael McCormick, assigned to the 391h District, testified
    that on October 16, 2011 at approximately 2 a.m. he was on duty responding to a request for
    backup in the area of 2200 West Ontario Street. (N.T. 3/4/15 p. 38). Officer McCormick
    identified the Defendant in court and continued:
    I responded to a backup call over [the] radio from now Inspector
    Bellamy, asking for backup in reference to a car stop he had, which
    was located at 2200 West Ontario. I was the driver. Myself and
    my partner, Officer Giacomelli, pulled up in our patrol car and
    observed the defendant sitting in her vehicle, headed westbound.
    (N.T. 3/4/15 pp. 38-39). Officer McCormick stated that the Defendant was facing westbound
    and blocking traffic in a one-way eastbound street. (N.T. 3/4/15 p. 39). He also stated that
    Inspector Bellamy's vehicle was in front of her vehicle with the lights on.          
    Id. Officer McCormick
    testified that:
    At that time we approached the female. She got out of the car,
    took-I forget if it was a Styrofoam cup or one of the red solo
    5
    cups-and tossed the contents onto the street. I asked her to step
    out.   She was basically nonverbal, could barely stand, had
    trouble-swaying or sagging, however you want to call it, and she
    was - we had to direct her to lean up against another vehicle to
    keep her from falling on the ground.
    (N.T. 3/4/15 pp. 39-40). When asked what happened next, Officer McCormick stated:
    We asked her if she knew where she was, if she had a driver's
    license, whose vehicle it was; registration, insurance, paperwork
    for the vehicle in reference to the car stop. She had a blank stare
    on her face, glassy eyes. Her lips were moving and nothing was
    coming out. She didn't -she was not able to say where she was,
    how she got there. She was nonverbal until we actually wound
    up-we believed she was under the influence. We placed her in
    handcuffs and put her in the back of the wagon. She only became
    verbal after we went down to the PDU to have her processed.
    (N.T. 3/4/15 p. 40). Officer McCormick first observed the Defendant in the driver's seat of her
    vehicle when he arrived on the scene with the vehicle running. 
    Id. At the
    Police Detention Unit
    (PDU), Officer McCormick stated that they passed the Defendant to the Accident Investigation
    District (AID) officer and went through the intake process where she was searched by staff.
    (N.T. 3/4/15 pp. 40-41). Officer McCormick also stated that when she was asked basic questions
    regarding medical, she was barely able to answer the questions. (N.T. 3/4/15 p. 41).
    Philadelphia Police Officer William Lackman, assigned to the AID, testified that on
    October 16, 2011 he was on duty at approximately          3:00 a.m. when he encountered the
    Defendant. (N.T. 3/4/15 pp. 42-43). He stated that he was working at police headquarters on 81h
    and Race Street in the PDU in the basement of the building.        (N.T. 3/4/15 p. 43).   Officer
    Lackman explained that there is a DUI testing room inside the detention unit where he was
    assigned that night.   
    Id. The Defendant
    was brought to Officer Lackman at 3: 16 a.m. that
    morning. 
    Id. When she
    arrived, the Defendant was in custody with two police officers standing
    with her at Officer Lackman's    door.   
    Id. He stated
    that he gave the Defendant the standard
    6
    warnings for those arrested for DUI in the City and County of Philadelphia.        (N.T. 3/4/15 pp.
    43-44).    He requested that she submit to a blood test and gave her information that related to
    penalties for anyone that refused, which included driver's license suspension and appropriate
    sentencing if convicted in a criminal court.    Id   Ultimately, the Defendant chose to take the
    blood test. (N.T. 3/4/15 p. 44).
    Officer Lackman stated that the blood was drawn at 3:26 a.m. by a nurse in his presence
    that morning.    (N.T. 3/4/15 p. 45). Two (2) tubes of blood were taken from the Defendant and
    secured on Philadelphia Property Receipt No. 3010201.         
    Id. The appropriate
    copies of the
    property receipt to the DrugScan collection kit were attached to the blood and stored in a
    refrigerator for blood sample storage at headquarters on 261h Street and Masters Street.         
    Id. Those samples
    were later sent to DrugScan for analysis. 
    Id. Officer Lackman
    stated that he did
    not remember having much of a conversation with the Defendant. 
    Id. Richard Cohn,
    forensic toxicologist and pharmacologist, with DrugScan, Incorporated
    testified that he has been employed by DrugScan for thirty (30) years. (N.T. 3/4/15 p. 48). Mr.
    Cohn stated that for twenty-three (23) of those years he was the laboratory director pursuant to
    the Commonwealth       Bureau of Laboratory Requirements,      as published in the Pennsylvania
    Bulletin, and also as the (RP) or responsible person pursuant to the National Laboratory
    Certification Program under the Substance Abuse and Mental Health Services Administration.
    For the last five (5) to six (6) years, Mr. Cohn has served only as a forensic toxicologist.   (N.T.
    3/4/15 p. 48). Defense counsel stipulated to Mr. Cohn's expertise. 
    Id. Mr. Cohn
    testified that he was working as a forensic toxicologist in November 2011 and
    identified Commonwealth exhibit four (C-4) from DrugScan as a forensic toxicology report that
    he authored on November 17, 2011 regarding the Defendant.           (N.T. 3/4/15 p. 49). Mr. Cohn
    7
    explained that the results of the report indicated the presence of seven (7) milligrams of ethyl
    alcohol per milliliter of blood, or a .07 percent, and also a presence of phencyclidine or PCP at
    63 nanograms per milliliter of blood.       (N.T. 3/4/15 pp. 49-50).   He stated that these were
    significant positive findings.   
    Id. The Commonwealth
    marked and moved exhibits C 1 through
    C4 into evidence.
    III.         ISSUE
    In the Pa. R.A.P. 1925(b) Concise Statement of Errors Complained of on Appeal, the
    Defendant identifies the following issue:
    1. The evidence was insufficient to sustain convictions for driving
    under the influence where the police officer did not observe
    appellant operate a motor vehicle. When the officer first observed
    appellant she was outside of the vehicle. She went in the vehicle
    retrieved a cup and poured a liquid out underneath the car. The
    police never ascertained who the driver of the vehicle was and no
    evidence was introduced linking appellant as the driver, owner or
    operator of the vehicle.
    IV.          STANDARD OF REVIEW
    When examining the sufficiency of the evidence, the standard is well settled.           In
    reviewing a challenge to the sufficiency of evidence, a court must "determine whether the
    evidence, and all reasonable inferences deductible from that, viewed in the light most favorable
    to the Commonwealth as verdict winner, are sufficient to establish all the elements of the offense
    beyond a reasonable doubt." Commonwealth v. Reynolds, 
    835 A.2d 720
    , 725-726 (Pa. Super
    2002). In making this assessment, the reviewing court may not weigh the evidence or substitute
    its own judgment for the fact-finder's judgment. Id at 726. In other words, "the fact-finder
    resolves any doubt about the defendant's guilt unless no probability of fact could be drawn from
    the evidence because it was so weak and inconclusive." 
    Id. The Commonwealth
    need not
    preclude every possibility of innocence in establishing the facts and circumstances. 
    Id. 8 A
    challenge to the sufficiency of evidence is a question of law.           Commonwealth v.
    Heater, 2006 Pa. Super 86, 15 (Pa. Super 2006). A reviewing court may not weigh the evidence
    or substitute its own judgment for that of the fact-finder, who is free to believe all, part, or none
    of the evidence.   Commonwealth v. Adams, 2005 Pa. Super 296, 882 A.2d. 496, 498-99 (Pa.
    Super. 2005).   The Commonwealth       may satisfy its burden of proof entirely by circumstantial
    evidence. 
    Id. at 499.
    "If the record contains support for the verdict, it may not be disturbed." 
    Id. V. DISCUSSION
    The Defendant argues that the evidence was insufficient to sustain her convictions for
    Driving Under the Influence where the police officers did not observe the Defendant operate a
    motor vehicle. The Defendant further claims that no evidence was introduced linking her as the
    driver, owner, or operator of the vehicle. This court disagrees.
    § 3802. Driving under      influence   of alcohol     or controlled
    substance
    (d) Controlled substances.--An individual may not drive, operate
    or be in actual physical control of the movement of a vehicle under
    any of the following circumstances:
    (1) There is in the individual's blood any amount of a:
    (i)     Schedule I controlled substance, as defined
    in the act of April 14, 1972 (P.L. 233, No.
    64), 1 known as The Controlled Substance,
    Drug, Device and Cosmetic Act;
    (ii)    Schedule II or Schedule III controlled
    substance, as defined in The Controlled
    Substance, Drug, Device and Cosmetic Act,
    which has not been medically prescribed for
    the individual; or
    (iii)   (iii) metabolite of a        substance    under
    subparagraph (i) or (ii).
    9
    (2) The 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 movement of the vehicle.
    75 Pa. C.S.A. § 3802. In order to convict a defendant of driving while under the influence to a
    degree that rendered him incapable of safe driving, the Commonwealth must show that the
    defendant was the operator of a motor vehicle, and that while operating the vehicle, the
    defendant was under the influence to such a degree as to render him incapable of safe driving; to
    establish the second element, it must be shown that alcohol or other substance had substantially
    impaired the normal mental and physical faculties required to safely operate the vehicle.
    Commonwealth v. Palmer, 
    751 A.2d 223
    (Pa. Super. 2000).
    The term "operate" in driving under the influence 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. Williams, 
    871 A.2d 254
    (Pa. Super. 2005). A determination of actual physical control of a vehicle, as required
    to sustain conviction for driving under the (DUI), is based upon the totality of the circumstances.
    Commonwealth v. Williams, 
    941 A.2d 14
    (Pa. Super. 2008); Commonwealth v. Brotherson, 
    888 A.2d 901
    (Pa. Super. 2005).
    A combination of the following factors is required in determining whether a person had
    actual physical control of an automobile to sustain a conviction for driving under the influence:
    the motor running, the location of the vehicle, and additional evidence showing that the
    defendant had driven the vehicle. Commonwealth v. Woodruff, 447 Pa.Super. 222, 
    668 A.2d 1158
    , 1161 (1995). "In 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." 
    Brotherson, 888 A.2d at 905
    (citing Commonwealth v. Bobotas, 
    588 A.2d 518
    , 521 (Pa.Super.1991) (finding
    10
    actual physical control when the defendant was found parked in an alley, where he had pulled
    over on the way home with the motor running); and Commonwealth v. Crum, 
    523 A.2d 799
    , 800
    (Pa.Super. 1987) (finding actual physical control where defendant was found sleeping in his
    parked car, along the side of the road, with the headlights on and the motor running).
    Here, the Commonwealth presented overwhelming evidence that was sufficient to sustain
    the Defendant's DUI convictions and support a finding that she had actual physical control of the
    vehicle while under the influence of a drug or a combination of drugs. The Commonwealth
    introduced testimony that Inspector Bellamy discovered the Defendant's vehicle facing the
    opposite direction in a one-way street and blocking traffic at 1 :45 a.m. on October 16, 2011.
    (N.T. 3/4/15 pp. 28-29, 39-40). The engine of the vehicle was running and the keys were in the
    ignition. (N.T. 3/4/15 pp. 33-34, 40). The credible testimony offered by Inspector Bellamy and
    Officer McCormick also suggested that the Defendant was visibly intoxicated. (N.T. 3/4/15 pp.
    28-29, 32, 39-41). She had glassy eyes, stumbled, had to be leaned up against a vehicle to keep
    from falling, and failed to cooperate and communicate with officers. Id
    The Defendant also reached inside of the vehicle, grabbed a cup from the center console,
    and dumped its liquid contents under the car in the officers' presence. (N.T. 3/4/15 pp. 29, 34,
    39-40). Moreover, the Defendant sat on the driver's side when she was asked to step out of her
    vehicle and the driver's side door was open in the precise location where she was initially
    discovered standing and stumbling. (N.T. 3/4/15 pp. 32, 38-39). No other person was present in
    or near the Defendant's vehicle. (N.T. 3/4/15 p. 33). Richard Cohn, forensic toxicologist and
    pharmacologist, confirmed that the Defendant's BAC was .07% and that she had 63 nanograms
    per milliliter of PCP in her blood, a significant positive finding. (N.T. 3/4/15 pp. 44-45). As
    such, the vehicle's location in the middle of a one-way street facing the wrong direction and the
    11
    Defendant's intoxicated behavior in and around the driver's side of the running vehicle supports
    a finding that the Defendant was the driver of that vehicle.
    VI.          CONCLUSION
    For all of these reasons, this court's decision should be affirmed.
    BY THE COURT:
    12