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HomeMy WebLinkAboutCP-21-CR-0283-2002COMMONWEALTH V. RONNIE W. COMERER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-0283 CRIMINAL TERM IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., August ,2003 After a non-jury trial on December 3, 2002, we found the defendant guilty of driving under the influence.~ On January 7, 2003, he was sentenced to pay fines and costs and to undergo imprisonment in the Cumberland County prison for not less than 48 hours nor more than 23 months. He timely filed a post sentence motion for judgment of acquittal which we denied on March 4, 2003. Because of a breakdown in the system, the defendant's counsel was never served with a copy of our order denying his motion. On June 10, 2003, we granted his motion to file this appeal nuncpro tunc. The only issue raised on appeal is the sufficiency of the evidence. FACTUAL BACKGROUND Shortly after 8:00 p.m. on October 12, 2001, Trooper Gregory Styers of the Pennsylvania State Police was dispatched to investigate the report of a suspected drunk driver on Mountain Road in South Middleton Township, Cumberland County, Pennsylvania.2 After talking with the complaining parties, the trooper parked his vehicle on Mountain Road, also known as Township Road 474, in order to establish a stationary patrol3 18 Pa. C.S.A. § 3731 (a)(1). We found him not guilty of related summary offenses. Trial Transcript, p. 4-5. Trial Transcript, p. 5. NO. 2002-0283 CRIMINAL He saw the defendant operating a four wheel ATV vehicle on a dirt road which is "Mountain Road extended.''4 There is a stop sign at the juncture of Mountain Road extended (the dirt portion) and Mountain Road (the paved portion).5 The trooper observed the defendant run that stop sign and travel onto the paved portion of Mountain Road.6 During the ensuing traffic stop the trooper noted signs of intoxication. There was a strong odor of alcohol.7 The defendant's movements lacked coordination, his speech was slurred, and he was shaky on his feet.8 The trooper opined that the defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving.9 The defendant was arrested and transported to the booking center to be processed. He admitted to having consumed ten (10) twelve (12) ounce cans of beer. l0 He was administered the standard field sobriety tests, which he did not perform satisfactorily. ~ In the opinion of the trained booking center agent, the defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving. ~2 DISCUSSION The section of the Vehicle Code under which defendant was charged provides: A person shall not drive, operate or be in actual physical control of the movement of a vehicle in any of the following circumstances: (1) While under the influence of alcohol to a degree which renders the person incapable of safe driving. Trial Transcript, pp. 6-8. Trial Transcript, p. 8. Trial Transcript, pp. 8-9. Trial Transcript, p. 10. Trial Transcript, p. 11. Trial Transcript, p. 12. l0 Trial Transcript, p. 22. ~ Trial Transcript, p. 27. ~: Trial Transcript, p. 29? NO. 2002-0283 CRIMINAL 75 Pa. C.S.A. § 3731 (a)(1). In addition, Section 3101 of the Vehicle Code provides that Subchapter B of Chapter 37 applies only to highways or trafficways. ~3 Since Section 3731 (a)(1) is within Subchapter B of Chapter 37, operation of the vehicle upon a highway or trafficway is an essential element of this offense. Based upon the facts as we found them to be, we were satisfied beyond a reasonable doubt that the Commonwealth had proven all the elements of the offense. Defendant does not dispute that the evidence was sufficient to prove that he had been operating a vehicle after consuming alcohol. Nor does he question his inability to drive safely. He does, however, question the sufficiency of the evidence in connection with his driving upon a highway or trafficway. He argues that since he never left the dirt portion of Mountain Road, the Commonwealth failed to prove that essential element of this offense. The standard of review in assessing a sufficiency of the evidence challenge is well settled and was recently articulated by the Superior Court as follows: "The standard (to be applied) in reviewing the sufficiency of 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." Commonwealth v. Heberling, 451 Pa. Super. 119, 678 A.2d 794, 795 (Pa. Super. 1996) (citing Commonwealth v. Williams, 539 Pa. 61,650 A.2d 420 (1994)) .... 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. Commonwealth v. Cassidy, 447 Pa. Super. 192, 668 A.2d 1143, 1144 (Pa. Super. 1995) (citations omitted). 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 13 75 Pa. C.S.A. § 3101(b). NO. 2002-0283 CRIMINAL 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. Falette, 531 Pa. 384, 388, 613 A.2d 548 549 (1992) (citations and quotation marks omitted). Commonwealth v. gdarinez, 777 A.2d 1121,1126 Pa. Super. (2001) quoting from Commonwealth v. Fetrini, 734 A.2d 404, 406-407 Pa. Super. (1999). Applying that standard to the case at bar, we are at a loss to understand the defendant's challenge. The trooper specifically testified that the defendant traveled onto the paved portion of Mountain Road. We believed him. 14 Therefore, we found the defendant guilty of violating Section 373 l(a)(1) of the Vehicle Code. DATE Edward E. Guido, J. Geoffrey S. Mclnroy, Esquire For the Commonwealth Timothy Clawges, Esquire For the Defendant :sld 14 Defendant concedes that the paved portion is a highway or trafficway under the Vehicle Code. We also note that the testimony established that the dirt portion of Mountain Road qualified as a trafficway. It is not only open to the public, but it serves as an access to two businesses. See Trial Transcript, p. 7.