J-S25003-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
HILAIRE KARANGWA :
:
Appellant : No. 591 WDA 2017
Appeal from the Judgment of Sentence March 9, 2017
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004420-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and OTT, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 9, 2018
Appellant, Hilaire Karangwa, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his bench
trial convictions for driving under the influence of alcohol (“DUI”), driving while
operating privilege is suspended or revoked, and public drunkenness. 1 We
affirm in part, and vacate and remand in part.
In its opinion, the trial court accurately set forth the relevant facts and
procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises the following issues for our review:
DID THE COMMONWEALTH FAIL TO PRESENT SUFFICIENT
EVIDENCE TO CONVICT [APPELLANT] OF DRIVING UNDER
THE INFLUENCE (“DUI”)?
SHOULD [APPELLANT’S] JUDGMENT OF SENTENCE…BE
____________________________________________
1 75 Pa.C.S.A. §§ 3802(a)(1); 1543(b)(1); 18 Pa.C.S.A. § 5505, respectively.
J-S25003-18
VACATED WHEN IT CONTAINS A SCRIVENER’S ERROR THAT
CONFLICTS WITH THE COMMONWEALTH’S ORAL
AMENDMENT WITH RESPECT TO THE CHARGE OF DRIVING
WHILE OPERATING PRIVILEGE IS SUSPENDED OR
REVOKED?
(Appellant’s Brief at 6).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Edward J.
Borkowski, we conclude Appellant’s issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed September 6, 2017, at 7-13)
(finding: (1) Commonwealth presented evidence that police were emergently
summoned to scene of recently crashed and burning vehicle; footprints from
driver’s door of burning vehicle led directly to Appellant, who was laying in
snow approximately 30 yards away; vehicle front bumper had struck another
vehicle parked in driveway of 106 Decker Lane, coming to rest parallel to that
parked vehicle; Appellant’s vehicle was on fire, keys were in ignition,
transmission was engaged, and engine was still running; Appellant had glassy
eyes, incoherent speech, he was unable to stand, had urinated himself, and
had strong odor of alcohol on his breath; Appellant lived near site of accident;
circumstantial evidence established Appellant was operating his vehicle while
intoxicated, crashed vehicle, and attempted to flee area but managed to travel
only 30 yards before collapsing onto snow-covered ground; although
Appellant’s vehicle came to rest in private driveway of 106 Decker Lane, street
-2-
J-S25003-18
adjacent to where Appellant’s vehicle came to rest is unquestionably “public
trafficway”; circumstantial evidence established that Appellant, while heavily
intoxicated, drove his vehicle on Decker Lane immediately before he pulled
onto private driveway of 106 Decker Lane, struck vehicle parked there, and
attempted to flee on foot; Commonwealth presented sufficient evidence to
sustain Appellant’s DUI conviction; (2) prior to trial, Commonwealth amended
count four of criminal information (driving while operating privilege is
suspended or revoked) from third-degree misdemeanor offense to summary
offense; court sentenced Appellant in accordance with summary offense but
sentencing order erroneously lists offense as original third-degree
misdemeanor charge instead of correct subsection of statute grading it as
summary offense; as sentencing order contains clear clerical error, Superior
Court should vacate and remand for limited purpose of correcting patent error
on sentencing order). Accordingly, we affirm Appellant’s convictions on the
basis of the trial court’s opinion; but we vacate and remand in limited part, as
the court requested, to correct a patent error on the sentencing order.2
Judgment of sentence affirmed in part; vacated and remanded in part.
Jurisdiction is relinquished.
____________________________________________
2The Commonwealth agrees with the trial court’s recommendation to vacate
and remand in limited part to correct the error on the sentencing order.
-3-
J-S25003-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/9/2018
-4-
Circulated 04/25/2018 03:21 PM
0,1116,1NAL
vriminei Dfvlsion
Dept, of Court Hecords
MegPony County, PA,
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
APPELLEE,
V.
HILAIRE KARANGWA, CC NO.: 201504420
APPELLANT.
591 WDA 2017
OPINION
FILED BY:
THE HONORABLE
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Pittsburgh, PA 15219
Michael Streily, Esq.
Office of the District Attorney
401 Allegheny County Courthouse
436 Grant Street
Pittsburgh, PA 15219
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, CRIMINAL DIVISION
APPELLEE,
V.
HILAIRE KARANGWA, CC NO.: 201504420
APPELLANT.
OPINION
BORKOWSKI, J.
PROCEDURAL HISTORY
Appellant, Hilaire Karangwa, was charged by criminal information (CC
201504420) with one count each of driving under the influence (0.16% or higher),'
driving under the influence (accident resulting in injury),2 driving under the
influence (third offense),3 driving while operating privilege is suspended,4 and one
summary count of public drunkenness.
1 75 Pa. C.S. § 3802(c).
2 75 Pa. C.S. § 3802(a)(1).
3 75 Pa. C.S. § 3802(a)(1).
4 75 Pa. C.S. § 1543(b)(1.1)(ii).
On November 17, 2016, the Trial Court granted the Commonwealth's
motion to withdraw count one and amend count four to driving while operating
privilege is suspended as a summary offense.
On November 17, 2016, Appellant proceeded to a nonjury trial, at the
conclusion of which the Trial Court took the matter under advisement.
On November 29, 2016, the Trial Court found Appellant guilty of driving
under the influence (third offense), driving while operating privilege is suspended,
and public drunkenness. The Trial Court found Appellant not guilty of driving
under the influence (accident resulting in injury).
On March 9, 2017, Appellant was sentenced by the Trial Court as follows:
Count three: driving under the influence (third offense) - thirty days
restrictive intermediate punishment and a concurrent period of probation of
eighteen months;
Count four: driving while operating privilege is suspended - sixty days
restrictive intermediate punishment to be served concurrent to the sentence
imposed at count three.
On March 16, 2017, Appellant filed a post sentence motion, which was
denied by the Trial Court on March 20, 2017.
This timely appeal follows.
3
STATEMENT OF ERRORS ON APPEAL
Appellant filed his Concise Statement of Errors on June 27, 2017. Appellant
raises the following issues on appeal, and they are presented below exactly as
Appellant stated them:
a. Mr. Karangwa's conviction for Driving Under the Influence
must be reversed and vacated because there was insufficient
evidence to support the verdict of guilty. Mr. Karangwa intends
to set forth the following arguments in support of this
contention:
i. Even if it were conceded that Mr. Karangwa
operated a motor vehicle on the day in
question, and that Mr. Karangwa was
intoxicated at the time that the police
encountered him, the Commonwealth
presented no evidence to prove, beyond a
reasonable doubt, that he was intoxicated
while operating the motor vehicle. Thus, the
evidence was insufficient to prove, beyond a
reasonable doubt, that Mr. Karangwa was
guilty of Driving Under the Influence.
ii. Alternatively, even if it were conceded that
Mr. Karangwa was, at some point, operating
a motor vehicle while intoxicated, the
Commonwealth presented no evidence to
show that Mr. Karangwa was on a public
trafficway while so operating the motor
vehicle. Thus, the evidence was insufficient
to prove, beyond a reasonable doubt, that
Mr. Karangwa was guilty of Driving Under
the Influence.
b. Mr. Karangwa's sentencing order erroneously states that he was
convicted of Driving while Operating Privilege is Suspended or
Revoked under 75 Pa.C.S. § 1543(b)(1)(1.1)(ii). A conviction
under that subsection requires that the actor drove with an
amount of alcohol equal to or greater than .02% by weight or
any amount of a Schedule I or nonprescribed Schedule II or III
4
controlled substance in his blood. The Commonwealth never
introduced evidence to meet either of these requirements at
trial. Furthermore, the Commonwealth orally amended this
charge to a charge of 75 Pa.C.S. § 1543(b)(1) just before trial.
The charge as it is listed on Mr. Karangwa's order of sentence
thus appears to be a scrivener's error and must be corrected.
FINDINGS OF FACT
On January 21, 2015, Appellant was residing on Decker Lane, Ross
Township, Allegheny County. Shortly before 12:15 A.M. on that date, Appellant
drove his vehicle into a neighbor's driveway (106 Decker Lane), striking a vehicle
that was parked in the driveway of that home. Appellant's vehicle caught fire,
Appellant exited his vehicle, and fled the immediate area, leaving the vehicle's
engine running and the transmission in gear (reverse). Appellant, however,
collapsed in the snow approximately thirty yards away from his vehicle. (T.T. 5-
10, 12, 14).5
Ross Township Police Officer Dean Chiaramonte was called to 106 Decker
Lane for a vehicle fire. (T.T. 5). Upon arrival, Officer Chiaramonte observed a
damaged Subaru Forester parked in the driveway of 106 Decker Lane. The front
bumper of Appellant's vehicle (a Kia Sedona) had impacted the Forester, and
Appellant's vehicle had come to rest parallel to the Forester. Appellant's vehicle
was on fire, the engine was running, the transmission was in reverse, and the
5The designation "T.T." followed by numerals refers to Non-Jury Trial Transcript, November 17
and 29, 2016.
5
driver's side door was ajar. Responding officers placed Appellant's vehicle in park,
and shut off the engine. (T.T. 5-6, 14).
There were no occupants in Appellant's vehicle, and Officer Chiaramonte
followed a fresh set of footprints in the snow from the driver's side open door to
Appellant, who was lying in the snow approximately 30 yards away. (T.T. 6-7). It
was quickly apparent to Officer Chiaramonte that Appellant was heavily
intoxicated. Appellant: (1) had glassy eyes; (2) had a strong odor of alcoholic
beverage on his breath; (3) was unable to stand; (4) was extremely difficult to
communicate with; and (5) had urinated himself. (T.T. 8-9). Appellant denied that
he had been driving, apologized, and stated that someone named James had been
driving. However, further inspection of the vehicle and the driveway area revealed
trash covering the passenger seat, and there was only the singular set of footprints
from the driver's side of the vehicle leading directly to Appellant. (T.T. 6-10).
Based upon his training and experience, Officer Chiaramonte opined that
Appellant was intoxicated to the point that he was incapable of safely operating a
motor vehicle. (T.T. 10). At the time of the incident, Appellant's license was
suspended for previously driving under the influence. (T.T. 11).
Appellant was charged as noted hereinabove.
6
DISCUSSION
I.
Appellant alleges in his first claim that -the evidence was insufficient to
sustain his conviction of driving under the influence. Appellant bifurcates this
claim into two parts; neither has merit.
The standard of review for sufficiency of the evidence claims has been
stated thusly:
The standard we apply when 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-fmder. 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-fmder 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 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. Gray, 867 A.2d 560, 567 (Pa. Super. 2005). The subsection of
the DUI statute under which Appellant was convicted provides that:
7
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.
75 Pa. C.S. § 3802(a)(1).
A.
In the first part of his sufficiency claim, Appellant avers that the
Commonwealth failed to prove beyond a reasonable doubt that Appellant was
intoxicated while he was operating a motor vehicle. In this regard, the Superior
Court has held as follows:
The term "operate" requires evidence of actual physical control
of the vehicle to be determined based upon the totality of the
circumstances. Our precedent indicates that a combination of
the following factors is required in determining whether a
person had "actual physical control" of an automobile: the
motor running, the location of the vehicle, and additional
evidence showing that the defendant had driven the vehicle.
The Commonwealth can establish that a defendant had "actual
physical control" of a vehicle through wholly circumstantial
evidence. Furthermore, a police officer may utilize both his
experience and personal observations to render an opinion as to
whether a person is intoxicated.
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (citations and
quotations omitted).
Contrary to Appellant's claim, the evidence presented at Appellant's trial
clearly established beyond a reasonable doubt that Appellant was operating a
motor vehicle while he was intoxicated to the degree that it rendered him incapable
8
of safely driving. To -wit: (1) police were emergently summoned to the scene of a
recently crashed and burning vehicle; (2) footprints from the driver's door of the
burning vehicle led directly to Appellant, laying in the snow approximately 30
yards away; (3) the vehicle's front bumper had struck a vehicle parked in the
driveway of 106 Decker Lane, coming to rest parallel to that parked vehicle; (4)
Appellant's vehicle was on fire, the keys were in the ignition, the transmission was
engaged, and the engine was still running; (5) Appellant had glassy eyes,
incoherent speech, he was unable to stand, had urinated himself, and had a strong
odor of alcoholic beverage on his breath; and (6) Appellant lived near the site of
the accident. (T.T. 5-10, 12, 14). The only logical conclusion from this evidence is
that Appellant was intoxicated while operating a motor vehicle, crashed that
vehicle, attempted to flee the area but only managed to travel 30 yards before
collapsing onto the snow-covered ground.
Thus, there was compelling and overwhelming direct and circumstantial
evidence that Appellant was intoxicated while operating a motor vehicle. See
Williams, 941 A.2d at 28-30 (evidence sufficient to sustain conviction of driving
under the influence where officer responded to 911 call for vehicle parked on
railroad tracks and observed defendant laying in the ground nearby; a witness
notified police that she had found defendant in the vehicle with the engine running,
and had put the vehicle in park and pulled defendant out of the vehicle to safety;
9
and that defendant, when awakened, was incoherent, confused, unsteady on her
feet, and had a strong odor of alcohol on her breath); Commonwealth v. Johnson,
833 A.2d 260, 263-264 (Pa. Super. 2003) (evidence sufficient to sustain conviction
of driving under the influence where defendant was leaning against driver's side
door when officers responded to accident call, and defendant's vehicle was behind
vehicle that it had rear -ended).
Appellant's claim is without merit.
B.
In the second part of his sufficiency claim, Appellant avers that the
Commonwealth failed to prove beyond a reasonable doubt that Appellant operated
the motor vehicle on a public trafficway. A trafficway is defined as "the entire
width between property lines or other boundary lines of every way or place of
which any part is open to the public for purposes of vehicular travel as a matter of
right or custom." 75 Pa. C.S. § 102. Appellant's vehicle came to rest in the private
driveway of 106 Decker Lane. While a private driveway is not a public trafficway,
Decker Lane, the street adjacent to where Appellant's vehicle came to rest, is
unquestionably a public trafficway. 75 Pa. C.S. § 102.
The only logical conclusion based on the evidence presented at Appellant's
trial is that Appellant, while heavily intoxicated, traversed Decker Lane
immediately before pulling into the private driveway of 106 Decker Lane, striking
10
the vehicle parked there, and attempted to flee on foot. Based on the evidence
presented, a reasonable inference arose that Appellant's vehicle came to rest on the
private property of 106 Decker Lane only after it had been on a roadway (Decker
Lane), immediately prior to impacting the parked vehicle. This evidence was
sufficient to sustain Appellant's conviction of driving under the influence.
Appellant's claim is without merit.
II.
Appellant alleges in his second claim that Appellant's sentencing order
contains a clerical error as it erroneously lists his driving while operating privilege
is suspended at 75 Pa. C.S. § 1543(b)(1.1)(ii), when the Commonwealth in fact had
amended that charge to 75 Pa. C.S. § 1543(b)(1), pursuant to Birch*ld.6 As to
clerical errors, the Superior Court has held:
It is well -settled in Pennsylvania that a trial court has the
inherent, common-law authority to correct "clear clerical
errors" in its orders. A trial court maintains this authority even
after the expiration of the 30 day time limitation set forth in 42
Pa.C.S.A. § 5505 for the modification of orders. [. . .] In
discussing a trial court's authority to correct illegal sentences,
our Supreme Court has stated that it is the obviousness of the
illegality, rather than the illegality itself, that triggers the court's
inherent power. The High Court has also cautioned that the
inherent power to correct errors does not extend to
reconsideration of a court's exercise of sentencing discretion. A
court may not vacate a sentencing order merely because it later
considers a sentence too harsh or too lenient. As a matter of
general guidance, our Supreme Court has sanctioned the use of
6 Birchfleld v. North Dakota, 136 S. Ct. 2160 (2016).
11
the inherent authority in cases that involve clear errors in the
imposition of sentences that were incompatible with the record
or black letter law.
Commonwealth v. Borrin, 12 A.3d 466, 471, 473 (Pa. Super. 2011) (citations and
quotations omitted).
Here, the Commonwealth amended count four to a summary level driving
while operating privilege is suspended (75 Pa. C.S. § 1543(b)(1)), which carries a
mandatory sentence of imprisonment of not less than 60 days and not more than 90
days. (T.T. 3-4). Appellant was sentenced accordingly to 60 days intermediate
punishment. However, the sentencing order incorrectly lists count four as the
original charge of a misdemeanor of the third degree (75 Pa. C.S. §
1543(b)(1.1)(ii)). As such, the sentencing order contains a clear clerical error, and
Appellant's case should be vacated and remanded to the trial court for the limited
purpose of correcting the error on the sentencing order. See Commonwealth v.
Thompson, 106 A.3d 742, 766 (Pa. Super. 2014) (judgment of sentence vacated
and remanded for limited purpose of correcting clear clerical error on sentencing
order where trial judge unambiguously stated on the record that the sentences were
to run concurrently, but the judgment of sentence ran the imposed sentences
consecutively).
12
CONCLUSION
Based upon the foregoing, the judgment of sentence imposed by this Court
at count four should be vacated and remanded to the Trial Court for the limited
purpose of correcting the clerical error on the sentencing order, and Appellant's
judgment of sentence should be affirmed in all other respects.
By the Court,
DATE: Q-/Itendli °-/ 201
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Com. v. Karangwa, H.
Combined Opinion