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HomeMy WebLinkAbout00-2395 CRIMINALCOMMONWEALTH VS. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-2395 CRIMINAL ALBERT E. ZEIS IN RE: OPINION PURSUANT TO RULE 1925 BEFORE HESS, J. The defendant in this matter, Albert Zeis, was found guilty after a jury trial of a count of driving under the influence. On December 4, 2001, he was sentenced to a fine and a period of not less than thirty (30) days nor more than twenty-three (23) months in the Cumberland County Prison. Post-sentence motions were timely filed and denied by order of court on February 27, 2002. This appeal has followed. IN his statement of matters complained of on appeal, the defendant sets forth three assignments of error having to do with the refusal of the court to suppress evidence. A suppression motion in this case was, indeed, denied by the Honorable George E. Hoffer, president judge. Judge Hoffer filed an opinion in support of his order on February 28, 2001. We adopt that opinion and incorporate it herein by reference. The fourth and final matter complained of on appeal was that the evidence was insufficient to sustain a conviction for driving under the influence as there was"not sufficient evidence that the Defendant was in actual physical control of the motor vehicle at the time of the traffic stop. Further, even if he was in actual physical control, he had no intent to exercise actual physical control at the time of the stopY Defendant's Concise Statement, para. 4. In this case, Trooper John G. Yunk of the Pennsylvania State Police came upon the defendant parked in his pick-up truck along an exit ramp of Interstate 81. The left side wheels of the pick-up were on the painted'Tog lind' of the interstate. The vehicle's lights were on and the motor was in operation. The defendant was asleep behind the wheel. The defendant was awakened after the officer tapped on the window of the truck with a flashlight. The defendant appeared disoriented. When the truck window was lowered, a strong odor of alcohol came from the vehicle. The defendant had trouble finding his vehicle documents. Upon getting out of the pick-up, the defendant staggered. He subsequently failed field sobriety tests. A breath test yielded results of. 124 percent. We are satisfied that the foregoing evidence is sufficient to sustain a conviction for driving under the influence. It is clear that the fact of operation while under the influence can be proven by circumstantial evidence. See Com. v. Zelosko, 454 Pa. Super. 635, 686 A.2d 825 (1996). The case of Com. v. Woodruff., 447 Pa. Super. 222, 668 A.2d 1158 (1995) holds, specifically, that there is sufficient evidence to support a finding that a motorist was in actual physical control of an automobile with the engine running while the car was located on the berm of the road. April 1, 2002 Office of District Attorney Karl Rominger, Esquire For the Defendant :rlm Kevin A. Hess, J.