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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ANTHONY YORGEY :
:
Appellant : No. 655 MDA 2021
Appeal from the Judgment of Sentence Entered April 30, 2021
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0001259-2020
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY OLSON, J.: FILED: MARCH 16, 2022
Appellant, Anthony Yorgey, appeals from his judgment of sentence,
entered on April 30, 2021, following his convictions for driving under the
influence (“DUI”): controlled substance – impaired ability – 1st offense and
DUI: controlled substance – metabolite – 1st offense.1 We affirm.
Appellant’s charges arose from a criminal incident that occurred on
October 2, 2019. Trial Court Opinion, 7/22/21, at 1. On December 7, 2020,
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. §§ 3802(d)(2), and 3802(d)(1)(iii), respectively.
We note that Appellant was also charged with DUI: controlled substance –
schedule 1 – 1st offense and driving while operating privileges suspended or
revoked. 75 Pa.C.S.A. §§ 2802(d)(1)(i), and 1543(a). The Commonwealth
nolle prossed the former and Appellant was found not guilty of the latter; thus,
these charges are not the subject of this appeal.
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Appellant filed an omnibus pre-trial motion seeking to suppress the results of
a blood test taken after an allegedly unlawful arrest. Id. at 2. An extensive
suppression hearing was held on March 18, 2021, after which the trial court
denied Appellant’s suppression motion. Id. On April 30, 2021, the trial court
conducted a bench trial “during which the totality of the testimony and
evidence presented at the suppression hearing was incorporated into the trial
record by agreement of the parties.”2 Id.
At Appellant’s March 2021 suppression hearing, Officer Michael Deitz of
the Lancaster City Bureau of Police testified to his extensive training and
experience in the investigation of matters that involve driving under the
influence, including a specialized certification as a drug recognition expert.
Id. at 6. The trial court summarized the following facts adduced at the
suppression hearing and bench trial:
The Commonwealth established that on October 2, 2019, Officer
Deitz [ ] responded to a dispatch reporting an unconscious male
inside of a blue Ford sport utility vehicle at 1:00 p.m. Upon arrival
to the scene, Officer Deitz observed the vehicle lawfully parked at
a “T-intersection” [ ] with the keys in the ignition[] and the vehicle
running. [The vehicle was lawfully parked on the street at or near
Appellant’s residence.] Appellant was not awake [but was] seated
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2The certified record includes the transcripts of testimony from the March 18,
2021 suppression hearing but omits the transcripts of testimony for the April
30, 2021 bench trial. It is the Appellant’s duty to ensure the certified record
contains all the facts and documents necessary for review. Commonwealth
v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008). The lack of trial transcript
does not hamper our review, however, because the record makes clear that
Appellant’s conviction was based upon the evidence and testimony from the
suppression hearing. See Trial Court Opinion, 7/22/21, at 2.
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in the driver’s seat of [the] vehicle. The door [to the] vehicle was
locked. Officer Deitz then repeatedly banged on the door and
window of the vehicle [ ] in an effort to wake Appellant.
Eventually, [ ] Appellant was awoken by Officer Deitz. Officer
Deitz then commanded Appellant to open the vehicle door and to
turn the vehicle off. Officer Deitz continued to interact with the
Appellant. Instead of following the officer’s instructions, Appellant
changed gears and placed the vehicle in drive. While the vehicle
was in drive, Appellant attempted to remove the keys from the
ignition. Officer Deitz instructed Appellant that “[he could not]
pull the keys out of the ignition unless [he] put the car back into
park.” Officer Deitz observed Appellant’s disorientation, pinpoint
pupils, slow reaction time, slurred speech, and an overall inability
to answer simple questions. Appellant also appeared to drool,
[had] disheveled clothing, and was sweating profusely. During his
interaction with Officer Deitz, Appellant claimed he had just
returned [to Lancaster] from a twelve-hour shift at work as a
landscaper in Reading, Pennsylvania. Upon request, Appellant
was unable to verbally spell or write his name.
Appellant disclosed that he had been sleeping in his vehicle and
denied any active use of prescription medication. In addition,
there was a confusing conversation relative to Appellant having
his cellular telephone stolen and that he was unable to recall his
telephone number.
As noted, during his interactions with Appellant, Officer Deitz
made several relevant observations, including Appellant’s:
constricted or “pinpoint” pupils; slow reaction times, even when
responding to simple inquiries; sweating; disheveled and unkept
clothing and appearance; slurred speech; and, that Appellant
appeared to be drooling, although [] Appellant claimed this was a
result of medical concerns. In addition, the officer observed that
Appellant had trouble writing down certain identification
information, although Appellant claimed this resulted from his
poor handwriting. Officer Deitz also observed Appellant’s
drooping eyelids and shaking arms. Again, Appellant professed
much of this was related to his ongoing anxiety concerns. It is
specifically noted that Appellant bec[a]me more coherent as the
interaction progressed. Officer Deitz then contacted emergency
medical personnel, and they did arrive to ensure Appellant’s
well-being. During that interaction, it was observed that Appellant
responded appropriately to the medical technicians’ questions,
that Appellant’s vital signs were checked, that Appellant was found
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to have an accelerated or elevated heart rate and normal blood
pressure. Appellant denied any further medical treatment.
Thereafter, Officer Deitz requested, and the Appellant agreed, to
the performance of a battery of standardized field sobriety testing
[all of which indicated impairment.] … Accordingly, Appellant was
arrested and transported to the Lancaster General Hospital where
he consented to blood testing procedures after being provided
with the relevant O’Connell[3] warnings. Such testing
demonstrated the presence of multiple controlled substances
including [various amounts of Nordiazepam, Clonazepam,
seven-amino Clonazepam, Morphine, Fentanyl, and Norfentanyl,
all of which are controlled substances that Appellant was not
authorized to have in his system.]
Id. at 7-10 (record citations and footnotes omitted).
At the conclusion of the bench trial, the trial court found Appellant guilty
of the aforementioned charges and proceeded directly to sentencing. Id. at
2. Appellant was sentenced to 72 hours to six months’ incarceration, a
$1,000.00 fine, and court costs. Id. at 3. Appellant did not file any
post-sentence motions. This appeal followed.4
Appellant raises the following issue for our review:
I. Was the evidence presented by the Commonwealth insufficient
to prove beyond a reasonable doubt that [Appellant] was guilty of
[DUI pursuant to 75 Pa.C.S.A. §§ 3802(d)(2) or (d)(1)(iii)], where
there was insufficient evidence that [Appellant] had driven,
operated, or been in actual physical control of the movement of
his vehicle?
Appellant’s Brief at 9 (extraneous capitalization omitted).
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3 Commonwealth v. O’Connell, 555 A.2d 873 (Pa. 1989).
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant’s sole issue on appeal raises a sufficiency of the evidence
challenge. “Because evidentiary sufficiency is a question of law, our standard
of review is de novo and our scope of review is plenary.” Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
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 [this] test, we may not weigh the
evidence and substitute our judgment for the fact-finder. 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-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 proof or proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying [this] test, the
entire record must be evaluated and all the 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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also
Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating that, in
reviewing a claim of insufficient evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier[-]of[-]fact could have found the essential elements of the crime
beyond a reasonable doubt”) (emphasis in original).
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Appellant was convicted of two separate counts of DUI under Section
3802 of the Motor Vehicle Code, 75 Pa.C.S.A. § 3802. Section 3802, in
relevant part, provides:
(d) Controlled substances. - - An individual may not drive, operate
or be in actual physical control of the movement of a vehicle under
any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in the Act of
April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance, as
defined in The Controlled Substance, Drug, Device and
Cosmetic Act, which has not been medically prescribed for
the individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
(2) The individual is under the influence of a drug or
combination of drugs to a degree which impairs the individual’s
ability to safely drive, operate or be in actual physical control
of the movement of the vehicle.
75 Pa.C.S.A. § 3802(d).
Appellant does not dispute that there were “heavy drugs in his
system[.]” Appellant’s Brief at 35. Rather, Appellant specifically claims there
was insufficient evidence that he was in actual physical control of his vehicle.
Id. at 23. He contends that the Commonwealth failed to introduce evidence
that, prior to Officer Deitz arrival, Appellant “did anything more than start his
car and fall asleep inside of it.” Id.. While Appellant admits that he was
seated in the driver’s seat with the keys in the ignition and the motor running,
he cites Commonwealth v. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003)
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to support his argument that “something 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.” Id.
at 30.
In finding that there was sufficient evidence to establish Appellant’s guilt
beyond a reasonable doubt, the trial court opined:
Contrary to Appellant’s assertion [that the evidence was
insufficient,] the Commonwealth offered substantial direct and
circumstantial evidence at trial as to Appellant being in actual
physical control of his motor vehicle while under the influence of
intoxicants to the extent that he was incapable of doing so safely.
More specifically, based upon the totality of the evidence
presented, the Commonwealth established that Appellant was in
actual physical control of his vehicle at the time in question. At
trial, the Commonwealth established that Appellant was found
unconscious in the driver’s seat of his vehicle, the vehicle’s motor
was running, and the keys were in the ignition. After being
awoken by the officer, Appellant controlled the machinery of the
vehicle by placing the vehicle into drive, which caused the vehicle
to move forward.[5] Subsequent thereto, at the officer’s direction,
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5 On appeal, Appellant contests the judge’s finding that the vehicle moved
forward based on lack of evidence. See Appellant’s Brief at 20 (arguing that
neither the body camera video recording nor the testimony evidenced the
vehicle moving forward). During the suppression hearing, the trial court had
extensive conversation with defense counsel regarding Appellant putting “the
car in gear and the car mov[ing] forward,” however counsel never objected to
this finding. See N.T., Suppression Hearing, 3/18,21, at 55-56. Further,
Appellant did not raise this issue in a post-sentence motion. Moreover, the
video recording is not included within the certified record for our review.
Therefore, because Appellant did not object to this finding at the suppression
hearing, did not allude to this issue in a post-sentence motion or in his concise
statement, and did not include all of the pertinent evidence presented to the
trial court, we conclude that Appellant waived the issue for appeal. See
(Footnote Continued Next Page)
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Appellant placed the vehicle into park, turned off the ignition, and
removed the vehicle’s keys. Additionally, Appellant admitted to
the officer that he had just returned from working a twelve-hour
landscaping shift in Reading, Pennsylvania, and denied any recent
use of controlled substances. Accordingly, such admissions are
indicative of the fact that Appellant drove the vehicle from Reading
to Lancaster and fail to suggest any use of controlled substances
by Appellant promptly upon his arrival in Lancaster.
Trial Court Opinion, 7/22/21, at 10.
This Court recently reaffirmed the standard for finding a defendant
“operated” or was “in physical control” of his vehicle. We explained:
[W]hile the Commonwealth was required to show that
[an a]ppellant was operating or in actual physical control of a
vehicle while under the influence[,] the prosecution did not need
to present evidence that the vehicle was in motion. This Court
has held that:
The term ‘operate’ 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. 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. A determination of actual physical control of a
vehicle is based upon the totality of the circumstances.
The Commonwealth can establish through wholly
circumstantial evidence that a defendant was driving,
operating or in actual physical control of a motor vehicle.
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Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (explaining
that it is the Appellant’s duty to ensure the certified record contains all
necessary documents and facts, and to prove that issues were preserved for
review). Nevertheless, even if Appellant properly preserved this issue, we find
Officer Deitz’s testimony sufficient to establish movement of the vehicle.
Additionally, even without this evidence, there was sufficient evidence to
establish Appellant’s control of the vehicle.
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Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super.
2010), quoting Commonwealth v. Brotherson, 888 A.2d 901,
904-905 (Pa. Super. 2005). In Toland, this Court found there
was sufficient evidence for the trial court to conclude that the
appellant was in actual physical control of the movement of a
vehicle when officers found the appellant parked outside a store
and asleep in the driver’s seat of a vehicle with the motor running
and headlights illuminated. [Id.] at 1246.
Commonwealth v. Dirosa, 249 A.3d 586, 589-590 (Pa. Super. 2021)
(emphasis added; some quotation and citation omitted). In Dirosa, police
observed the appellant slumped over in the driver’s seat of a running vehicle,
the appellant was initially unresponsive, and once awakened, the appellant
made several admissions which implicated his consumption of alcohol before
driving. Thus, this Court found that there was sufficient evidence that the
appellant operated or was in actual physical control of his vehicle while under
the influence because “it was reasonable for the trial court to infer that [the
a]ppellant was intoxicated when he drove his vehicle and parked” it where
officers found him. Id. at 590.
Similarly, in the case sub judice, sufficient evidence supports the trial
court’s determination that Appellant was in actual physical control of his
vehicle while intoxicated. Appellant was found by Officer Deitz at 1:00 p.m.
in a state of unconsciousness in the driver’s seat of his vehicle with the keys
in the ignition and the vehicle running. See N.T., Suppression Hearing,
3/18/21, at 17-20; id. at 20 (Officer Deitz observing that the vehicle was
running because he could “see exhaust, the lights, and [he could] hear it.”).
Appellant required substantial rousing to awaken, exhibited multiple
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symptoms of impairment, failed numerous field sobriety tests, and made
several statements indicating that he just returned from Reading,
Pennsylvania. It was reasonable for the trial court to infer that Appellant
drove to the location while intoxicated, especially in light of the fact that, as
Appellant notes, no drugs were found in the vehicle. See Appellant’s Brief at
35. Thus, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, sufficient evidence supported Appellant’s
DUI convictions.
We reject Appellant’s contention that his conviction hinged on his
operating the gear shift to place the car in drive and back into park. Rather,
how he was situated – in the driver’s seat with the keys in the ignition and car
turned on – placed him in control of “the machinery of the motor vehicle or
the management of the vehicle’s movement[.]” Toland, supra. Similarly,
to the extent that Appellant suggests that his own intoxication renders his
statements incredible as shown through the bodycam video recording, it
seems illogical to allow an individual to rely on his level of intoxication to
relieve him of the consequences of his actions. Further, it is not the function
of this Court to substitute its credibility determinations over that of the trial
court. Pappas, supra. Accordingly, Appellant’s claim is unavailing.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/16/2022
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Com. v. Yorgey, A.
Combined Opinion