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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
CHARLES F. MCINTYRE, :
:
Appellant :
: No. 1331 WDA 2015
Appeal from the Judgment of Sentence August 21, 2015
in the Court of Common Pleas of Fayette County Criminal Division
at No(s): CP-26-CR-0001961-2014
BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MARCH 2, 2016
Appellant, Charles F. McIntyre, appeals from the judgment of
sentence entered in the Fayette County Court of Common Pleas following his
conviction for, inter alia, driving under the influence of alcohol1 (“DUI”).
Appellant challenges the sufficiency of the evidence. We affirm.
The trial court ably summarized the underlying facts:
Pennsylvania State Trooper Jonathan Monkelis was
dispatched to Pennsylvania Route 119 near Englishman Hill
Road in Bullskin Township, Fayette County, Pennsylvania
on the evening of April 19, 2014, at 7:58 P.M. Upon arrival
at the scene of the accident at 8:06 P.M., Trooper Monkelis
found a truck with front end damage and damage to the
passenger side windshield. Trooper Monkelis questioned
[Appellant] in order to ascertain what had happened, and
[Appellant] told [him] that he had been drinking
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. § 3802.
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throughout the entire day, and had consumed
approximately thirty cans of Keystone Red beer and a
bottle of wine. He also told the trooper that he had crashed
into a tree, but continued driving in an attempt to reach
his residence. [Appellant] explained the scene at which he
and the officer were standing by saying that the truck had
stalled out when he reached Englishman Hill Road, and
someone had helped push it to the side of the road while
[Appellant] sat in the driver’s seat, but it drifted off of the
road and went into a ditch, where Trooper Monkelis saw
the right front tire resting when he was at the scene. The
back end of [Appellant’s] truck was partially blocking the
travel portion of the road. [Appellant] was the only person
present who was in the vehicle at the time it entered the
ditch.
The trooper observed five open empty cans of
Keystone Red beer and an open gallon bottle of Richards
Wild Irish Rose wine, which was about one-quarter full, in
the bed of [Appellant’s] truck. Trooper Monkelis then
smelled a very strong odor of alcohol on [Appellant’s]
person, and [Appellant’s] eyes were bloodshot.
[Appellant] was not asked to do field sobriety tests
because he told the officer he was unable to perform them
due to an old injury. [Appellant] was then arrested on
suspicion of DUI, and transported to the hospital for a
blood draw. Trooper Monkelis obtained a search warrant
for the blood from a magisterial district judge, and the
blood was drawn in the hospital at 9:03 P.M. on April 19,
an hour after Trooper Monkelis arrived at the scene where
[Appellant] had caused his vehicle to go into a ditch. The
test result for [Appellant’s] BAC was, as found by the jury,
0.231, well above the .08 statutory threshold set forth in
the DUI statute, 75 [Pa.C.S.] § 3802.
The Court took judicial notice of the fact that
Pennsylvania Route 982 is a heavily travelled roadway,
and the trooper also testified that the route is a main road
with heavy traffic on it. Witness Francis Shuman testified
that he saw the accident scene on Route 982, and spoke
with [Appellant] at the scene to see if he needed help. Mr.
Shuman told the jury that [Appellant] was the only person
around and was already out of his vehicle, looking at the
damage. [Appellant] said to Mr. Shuman, “I wrecked,”
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and his buddy was coming to pull him out. Mr. Shuman
estimated he stayed on the scene with [Appellant] for
about five minutes, observed [Appellant] to have slurred
speech and wobble on his feet, and was concerned about
the possibility of [Appellant] driving so he went to the
Sheetz gas station about one minute down the road to call
911. The sealed record from Fayette 911, admitted into
evidence as Exhibit 5, established that Mr. Shuman’s call
was received at 7:51:25 P.M. on April 19, 2014. Exhibit
No. 5 also reveals that two more people called to report
the same accident within two minutes after Mr. Shuman’s
call.
Trial Ct. Op., 9/16/15, at 1-3 (citations omitted).2 After a jury trial, on
August 6, 2015, Appellant was convicted of two counts of driving under the
influence of alcohol and five summary offenses. On August 21, 2015, the
trial court sentenced Appellant to a term of eighteen to sixty months of
incarceration. This timely appeal followed.
Appellant raises the following two issues:
Whether the Commonwealth presented sufficient evidence
to establish that [Appellant’s] blood was properly drawn
within two (2) hours after driving a motor vehicle as
required by [75] Pa.C.S.A. § 3802(c)?
Whether the Commonwealth sufficiently established that
[Appellant] drove, operated or was in actual physical
control of the automobile?
Appellant’s Brief at 7.
2
We note that Appellant also testified at trial. N.T. Trial, 8/5/15, at 95-102.
Significantly, Appellant admitted to driving the vehicle at issue stating: “Yes,
I drove it,” and “How else was I going to get home? I ain’t walking.” Id. at
101.
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In the instant case, for purposes of expediency, we will address
Appellant’s issues in reverse order. In his second issue, Appellant argues
that the evidence was not sufficient to establish that he was driving his
vehicle at all during the incident in question. Specifically, Appellant alludes
to the contention that someone else was driving at the time of the accident.
He points out that no witness at trial could directly testify that they saw him
behind the wheel or even inside the vehicle. Appellant’s Brief at 13.
The standard of review for a sufficiency of the evidence challenge is
well-established:
In reviewing the sufficiency of the evidence, we examine
whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support
the jury’s findings of all the elements of the offense
beyond a reasonable doubt. The Commonwealth may
sustain its burden by means of wholly circumstantial
evidence.
Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013) (citations
omitted), cert. denied, 135 S. Ct. 221 (2014).
Further, we note that “[u]nder 75 Pa.C.S.A. § 3802(c), 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.” Commonwealth v.
Rakowski, 987 A.2d 1215, 1217 (Pa. Super. 2010) (holding, inter alia, that
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the evidence was sufficient to support the petitioner’s conviction under 75
Pa.C.S. § 3802(c), where all reasonable inferences from the testimony,
when viewed in the light must favorable to the verdict winner, could
establish that petitioner’s blood alcohol level was above 0.16 within two
hours of his operating a vehicle).
The trial court found Appellant’s second issue to be “frivolous” and
we agree. Trial Ct. Op. at 4. As the trial court properly cited, both Trooper
Monkelis and witness Shuman testified that Appellant had confessed to
driving the car during the accident. Id. Further, Appellant admitted to
driving the car during the incident in question during his cross-examination
at trial stating, “Yes, I drove it.” N.T. Trial at 101. According, we hold that
the evidence was sufficient to establish that Appellant was operating the
vehicle, as required under 75 Pa.C.S. § 3802(c), and Appellant’s second
issue on appeal is meritless. See Mattison, 82 A.3d at 392.
Turning to his first issue, Appellant asserts that the evidence
presented was insufficient to establish that his blood alcohol level was above
0.16 within two hours of his operation of a vehicle. In particular, Appellant
argues that witness Shuman testified that he saw Appellant’s damaged
vehicle at approximately 7:39 p.m. on the evening in question, but the
vehicle could have been stopped there long before that time and Appellant’s
blood was drawn at 9:03 p.m. that evening. The trial court did not agree,
instead emphasizing that witness Shuman, as well as two additional 911
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callers, could place Appellant with his vehicle disabled in a ditch, within an
hour and fifteen minutes of the time Appellant had his blood drawn. Trial Ct.
Op. at 3-4. The court concluded that because the route in question is a very
heavily travelled road, a fair inference is that the accident scene was not
present for more than a few minutes before the three 911 callers alerted
police. Id. We agree.
When viewing the evidence in the light most favorable to the
Commonwealth, as the verdict winner, we hold that the evidence was
sufficient to establish that Appellant’s blood alcohol level was above 0.16
within two hours of his operation of his vehicle. As noted, it is well-settled
that circumstantial evidence is sufficient to satisfy the Commonwealth’s
burden of proof. See Mattison, 82 A.3d at 392. In this case, although the
Commonwealth did not present evidence that would establish the exact
time of Appellant’s accident, sufficient circumstantial evidence established
the approximate time within a few minutes. Thus, sufficient evidence
established that Appellant’s blood alcohol level was 0.16 within two hours of
his operation of a vehicle as set forth under 75 Pa.C.S. § 3802(c); See
Rakowski, 987 A.2d at 1217. Therefore, Appellant’s first issue on appeal
must also fail. Accordingly, we affirm the trial court’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/2/2016
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