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HomeMy WebLinkAboutCP-21-CR-0000172-2011 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : GARY MORTON : CP-21-CR-0172-2011 IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., February 10, 2012:-- Following a nonjury trial, Defendant, Gary Lloyd Morton, was convicted of DUI, General Impairment, and DUI, High Rate. Defendant now complains of the following matter on appeal: The evidence presented by the Commonwealth was not sufficient to support the Court’s finding of guilt for Driving Under the Influence; where the Commonwealth’s evidence could not have proved beyond a reasonable doubt that the Defendant had driven, operated or been in actual physical control of the vehicle. Concise Statement, filed January 17, 2012. I. Facts On November 10, 2010, at 12:40 am, Officer Joseph Scalera of the Hampton Township Police Department was on duty performing a routine patrol. In the course of this patrol he passed a bar, Johnny Joe’s, where he observed a man in the parking lot wearing a hat with white hair in a ponytail vomiting next to a red Chevy Venture van. Officer Scalera continued his patrol and performed an unrelated traffic stop. Later, he observed a red minivan parked in the parking lot of Carpet Mart, which was closed at the time. Officer Scalera noted this was a no trespassing after hours area and the van was parked perpendicularly across horizontal parking spaces. He decided to investigate the suspicious vehicle. CP-21-CR-0172-2011 Inside the vehicle Officer Scalera observed Defendant slumped over the steering wheel. As the Officer tried to rouse Defendant, Defendant had significant difficulty opening the vehicle door and providing his driver’s license and vehicle information. Officer Scalera also noted a strong odor of an alcoholic beverage. Upon questioning, Defendant admitted to drinking two alcoholic beverages that night. When asked why he was in the parking lot, Defendant replied he was “sleeping it off.” Officer Scalera further observed the vehicle’s keys were in the ignition and the engine was still warm. Officer Scalera asked Defendant to perform field sobriety tests. Defendant attempted to perform the tests, but repeatedly stopped complaining of back pain. As Officer Scalera testified, “we didn’t really get through any standard field sobriety tests because he kind of danced through the walk-and-turn. He kind of like skipped through it and made a joke out of it.” Notes of Testimony, Sept. 16, 2011. At this point, based on the totality of the circumstances, Officer Scalera determined Defendant was driving under the influence and placed him under arrest. For his part, Defendant presented one witness, Brian Bonaparte. The court declines to recite the witness’s testimony at length because we rejected it as not credible. In short, Mr. Bonaparte described an implausible series of events where he was at all relevant times the driver and he left Defendant in the parking lot. At the close of testimony, the court found Defendant guilty. -2- CP-21-CR-0172-2011 II. Discussion Defendant raises one issue on appeal, whether there was sufficient evidence to support the court’s finding, beyond a reasonable doubt, that Defendant had driven, operated, or been in actual physical control of the vehicle. It is well-settled that in considering a challenge to the sufficiency of the evidence, the reviewing court views the evidence in the light most favorable to the Commonwealth as the verdict winner and draws all reasonable inferences in the Commonwealths favor. Commonwealth v. O'Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003). Further, the trier of fact is the ultimate arbiter of the weight of the evidence and credibility of witnesses. As such, the court is free to believe all, part, or none of the evidence. Commonwealth v. Griscavage, 517 A.2d 1256, 1257 (Pa. 1986). Relevant here, the Motor Vehicle Code provides: 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 at least 0.10% but less than 0.16% 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. § 3802(b) (emphasis added). Our appellate courts have provided varied interpretation of “actual physical control.” However, the courts have demonstrated that: [S]omething more than a defendant behind the wheel, with the motor running, is required to establish actual physical control of the vehicle; there must be evidence to support an inference indicating that the vehicle had been driven by the defendant while he was intoxicated. A determination of actual physical control of a vehicle is based upon the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was additional evidence -3- CP-21-CR-0172-2011 indicating that the defendant had driven the vehicle prior to the arrival of the police. Commonwealth v. Saunders, 691 A.2d 946, 950 (Pa. Super. 1997) (citations omitted). Here, the court was persuaded that the totality of the evidence presented at trial proved beyond a reasonable doubt that Defendant was in actual physical control of his vehicle while intoxicated. First, Officer Scalera testified he had observed Defendant earlier in the evening outside a bar vomiting next to the van in which he was ultimately discovered. The van was parked irregularly in the secluded parking lot of a carpet store that does not serve alcohol. The court, as fact-finder, reasonably inferred that Defendant must have consumed alcohol elsewhere prior to driving the van to the parking lot. Defendant was found slumped over the steering wheel with the keys in the ignition and the engine still warm. Based on all this evidence and drawing all reasonable inferences in the Commonwealth’s favor, as verdict winner, there was ample evidence to support 1 the guilty verdicts against Defendant. III. Conclusion For all these reasons, it is respectfully submitted that the Superior Court should affirm the guilty verdicts against Defendant. By the Court, (Date) Albert H. Masland, J. Again, we rejected the testimony of Brian Bonaparte as not credible and 1 therefore accord it no weight whatsoever. See Commonwealth v. Griscavage, 517 A.2d 1256, 1257 (Pa. 1986). -4- CP-21-CR-0172-2011 Matthew Smith, Esquire Assistant District Attorney Eric David, Esquire For Defendant :saa -5-