J-S33035-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOHNNY LEE NELSON
Appellant No. 1624 WDA 2015
Appeal from the Judgment of Sentence July 8, 2015
In the Court of Common Pleas of Crawford County
Criminal Division at No(s): CP-20-CR-0000634-2014
BEFORE: GANTMAN, P.J., OLSON, J., and FITZGERALD, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 22, 2016
Appellant, Johnny Lee Nelson, appeals from the judgment of sentence
entered in the Crawford County Court of Common Pleas, following a
bifurcated bench/jury trial after which Appellant was convicted of one count
of driving under the influence of alcohol or controlled substance (“DUI”)
(general impairment), one count of DUI highest rate of alcohol, and driving
while operating privilege is suspended or revoked.1 We affirm.
The trial court opinion sets forth the relevant facts of this case as
follows:
Trooper Timothy Dilijonas testified that at approximately
2:15 a.m. while he and another Trooper were on routine
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1
75 Pa.C.S.A. §§ 3802(a)(1), 3802(c), and 1543(a), respectively.
___________________________
*Former Justice specially assigned to the Superior Court.
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patrol they were traveling north on State Rt. 6 and 19 near
Saegertown. He indicated that the Troopers were
following a blue Chevy Blazer with a registration plate
“JUNKIN” traveling north in front of them.
He stated that he observed that vehicle make a right hand
turn into the Owl’s Nest parking lot and park with the
headlights facing south right up against that building.
Ashley Kirkland, a bartender in the Owl’s Nest, testified
that [Appellant] came into the bar after 2:00 a.m. and
wanted either an alcoholic beverage or non-alcoholic
beverage but she told him she could not serve him
because it was after 2:00 a.m. She indicated that he was
a bit upset which concerned her and that she looked out
the window after he left and she testified to the following:
I called the police because I looked out the window
and I saw a vehicle and I could see the tail lights,
[they] were going on and off like as if somebody had
never driven before, brakes go on brakes go off,
lights flickering on or off, somebody got out of the
driver’s side, went to the passenger side and I only
saw one person.
She went on to indicate that after the police arrived she
went outside and the person who exited that vehicle was
the same person who had been in the Owl’s Nest shortly
after 2:00 a.m. and was [Appellant].
Trooper Dilijonas testified that he received a dispatch
apparently based on the call Ashley Kirkland made at
approximately 2:30 a.m. and he arrived at the Owl’s Nest
at approximately 2:37 a.m.
He testified that at this time he noticed the same Chevy
Blazer but it was now facing north on the north side of the
parking lot so that it looked like it had backed up and
turned around so the headlights were now facing north.
He stated that he noticed someone in the front passenger
side who was ultimately identified as [Appellant] and who
was the only one who exited the vehicle.
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He further testified that [Appellant] told him that he drove
the Blazer from the south side where it had been parked
up against the building to the other side of the parking lot.
* * *
In considering whether the conclusion that [Appellant] was
driving the vehicle was against the weight of the evidence,
we note that [Appellant] presented the testimony of
Shannon Muddiman who essentially indicated that she left
[Appellant] with his keys in the Owl’s Nest parking lot,
apparently after he had gone into the Owl’s Nest and the
bartender refused to serve him soda. She indicated that
she did not know what happened after she left the parking
lot in her own vehicle.
[Appellant] also presented the testimony of Jessica Yonkin
who indicated that when she retrieved the Blazer at the
Owl’s Nest in Saegertown the morning following
[Appellant’s] arrest, the driver’s seat had been moved
close to the steering wheel to the point she could not drive
the vehicle and to the point [Appellant] would not have
been able to do so either.
Finally, [Appellant] himself testified that after he had been
drinking it was Ms. Muddiman and not himself that drove
the vehicle. He further indicated that he would not have
told Trooper Dilijonas that he was driving the vehicle in the
parking lot but he was apparently so under the influence
that he may have misunderstood the question and he did
not want to call Trooper Dilijonas a liar.
(Trial Court Opinion, filed September 15, 2015, at 2-3) (internal citation to
record omitted). The jury found Appellant guilty of the DUI offenses, and
the court convicted Appellant of driving with a suspended license. The court
sentenced Appellant on July 8, 2015, to pay costs, a fine of $1,500, and
intermediate punishment of sixty (60) months. Appellant’s intermediate
punishment sentence required him to serve seven (7) months’ of
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incarceration with work release privileges, followed by four (4) months of
on-radio frequency with SCRAM, three (3) months of on-radio frequency
without SCRAM, one (1) month of intensive intermediate punishment
supervision and regular intermediate punishment supervision.2 Appellant
timely filed a post-sentence motion on July 17, 2015, challenging the
sufficiency and weight of the evidence to support his convictions, which the
court denied on September 15, 2015. Appellant timely filed a notice of
appeal on October 14, 2015. On October 15, 2015, the court ordered
Appellant to file a concise statement of errors complained of on appeal, per
Pa.R.A.P. 1925(b), and Appellant timely complied on November 4, 2015.
Appellant raises two issues on appeal:
WHETHER THERE WAS SUFFICIENT EVIDENCE TO
SUPPORT VERDICTS OF GUILTY WITH RESPECT TO
DRIVING UNDER THE INFLUENCE AS TO THE ESSENTIAL
ELEMENT OF THESE OFFENSES WITH RESPECT TO
[APPELLANT] BEING IN OPERATION OR IN PHYSICAL
CONTROL OF A MOTOR VEHICLE AT THE RELEVANT TIME
PERIOD.
WHETHER OR NOT THE VERDICTS WITH RESPECT TO
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2
We observe the trial court sentenced Appellant pursuant to 75 Pa.C.S.A §
3803(a), (b)(4). We are also mindful of Commonwealth v. Grow, 122
A.3d 425 (Pa Super. 2015), and Commonwealth v. Musau, 69 A.3d 754
(Pa. Super. 2013) (interpreting prefatory language found in prior version of
75 Pa.C.S.A § 3803(a) to limit maximum sentence for first or second DUI
conviction to six (6) months’ imprisonment). Grow and Musau, however,
do not apply in this case or affect Appellant’s sentence because Appellant
violated Section 3802(c) and had a prior offense, so his DUI was properly
graded as a first degree misdemeanor, with a maximum sentence of five (5)
years. See 18 Pa.C.S.A. § 106(b)(6) and 75 Pa.C.S.A. § 3803(b)(4).
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DRIVING UNDER THE INFLUENCE WERE AGAINST THE
WEIGHT OF THE EVIDENCE AS TO [APPELLANT’S] BEING
IN OPERATION OR IN PHYSICAL CONTROL OF A MOTOR
VEHICLE AT THE RELEVANT TIME PERIOD.
(Appellant’s Brief at 4).
For purposes of disposition, we combine Appellant’s issues. Initially
Appellant argues the Commonwealth presented insufficient evidence to
demonstrate that Appellant operated or was in physical control of the vehicle
on the night of the incident because neither the bartender nor Trooper
Dilijonas personally observed Appellant operating the vehicle. Instead,
Appellant contends his witness, Shannon Muddiman, established that she
was the sole operator of the vehicle until Appellant’s arrest in the Owl’s Nest
Tavern parking lot. To emphasize this point, Appellant states at the time
State Police confronted him, Appellant was in the passenger seat of the
vehicle with the keys out of the ignition. Appellant also challenges the
weight of the evidence, arguing the Commonwealth’s testimony taken as a
whole was circumstantial and failed to show that Appellant operated or was
in physical control of the vehicle. Appellant concludes this Court must
dismiss the convictions for DUI or order a new trial. We disagree.
With respect to Appellant’s sufficiency claim:
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
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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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
Our standard of review for a challenge to the weight of the evidence is
as follows:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the lower
court’s verdict if it is so contrary to the evidence as to
shock one’s sense of justice. Moreover, where the trial
court has ruled on the weight claim below, an appellate
court’s role is not to consider the underlying question of
whether the verdict is against the weight of the evidence.
Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight
claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
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(internal citations omitted).
The DUI statute in relevant part provides:
§ 3802. Driving under influence of alcohol or
controlled substance
(a) General impairment.—
(1) 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 individual is rendered incapable of
safely driving, operating or being in actual physical
control of the movement of the vehicle.
* * *
(c) Highest rate of alcohol.—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.
75 Pa.C.S.A. § 3802(a)(1), (c). The term “operate” as used in the DUI
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. Johnson,
833 A.2d 260, 263 (Pa.Super. 2003).
Regarding Appellant’s issues, the trial court reasoned as follows:
The circumstantial evidence alone, when looked at in the
light most favorable to the verdict winner, was sufficient to
establish beyond a reasonable doubt that [Appellant] was
driving the vehicle and that is bolstered by his admission
that he did so.
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* * *
Obviously, while some of the testimony presented by
[Appellant] and his witnesses was contrary to the
[Commonwealth’s] testimony, as we have indicated, the
trier of fact was free to believe which testimony the trier of
fact found to be truthful in whole or in part and we cannot
find based on all of this evidence that the verdict was so
contrary to the evidence to shock our sense of justice.
(Trial Court Opinion at 2-3). The record supports the court’s analysis, which
we accept. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/2016
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