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Commonwealth v. Ulen

SUPERIOR COURT OF PENNSYLVANIA
Sep 19, 2016
No. 1946 MDA 2015 (Pa. Super. Ct. Sep. 19, 2016)

Opinion

J-A22031-16 No. 1946 MDA 2015

09-19-2016

COMMONWEALTH OF PENNSYLVANIA Appellee v. THERESA M. ULEN Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence November 3, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0000410-2015 BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. MEMORANDUM BY GANTMAN, P.J.:

Appellant, Theresa M. Ulen, appeals from the judgment of sentence entered in the Cumberland County Court of Common Pleas, following her bench trial convictions for driving under the influence of alcohol or a controlled substance ("DUI") (general impairment and high rate of alcohol), driving while operating privilege is suspended or revoked (DUI-related), and restrictions on alcoholic beverages. We affirm.

75 Pa.C.S.A. §§ 3802(a)(1), (b); 1543(b)(1); and 3809(a), respectively.

In its opinion, the trial court fully and correctly set forth the relevant facts of this case. Therefore, we have no reason to restate them. Procedurally, the Commonwealth charged Appellant with the various offenses on April 13, 2015. Appellant proceeded to a bench trial, where the court convicted Appellant of all charged offenses on September 8, 2015, and ordered a pre-sentence investigation report. On November 3, 2015, the court sentenced Appellant to a term of forty-eight (48) hours to six (6) months' incarceration for her DUI high rate of alcohol conviction, in addition to 60 days' incarceration for driving with a suspended license (DUI-related). The court also ordered Appellant to pay the costs of prosecution and a fine. Appellant's conviction for DUI general impairment merged for sentencing purposes. On November 5, 2015, Appellant timely filed a notice of appeal. The court ordered Appellant on November 6, 2015, to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on November 24, 2015, before filing an amended Rule 1925(b) statement on November 25, 2015.

Appellant raises the following issues for our review:

WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT] DROVE, OPERATED, OR WAS IN ACTUAL PHYSICAL CONTROL OF THE MOVEMENT OF A VEHICLE TO SUPPORT A FINDING OF GUILT FOR DRIVING UNDER THE INFLUENCE, GENERAL IMPAIRMENT AND DRIVING UNDER THE INFLUENCE, HIGH RATE?

WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT [APPELLANT] DROVE A MOTOR VEHICLE ON A HIGHWAY OR TRAFFICWAY OF THIS COMMONWEALTH TO SUPPORT A FINDING OF GUILT FOR DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED OR REVOKED, DUI-RELATED?
(Appellant's Brief at 6).

When examining a challenge to the sufficiency of evidence:

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 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)).

The Motor Vehicle Code governs "serious traffic offenses," which occur "upon highways and trafficways throughout this Commonwealth." 75 Pa.C.S.A. 3101(b). DUI is classified as a serious traffic offense. 75 Pa.C.S.A. § 3802(a)(1), (c). The Motor Vehicle Code defines "Highways" and "Trafficways" as follows:

§ 102. Definitions

Subject to additional definitions contained in subsequent provisions of this title which are applicable to specific provisions of this title, the following words and phrases
when used in this title shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:


* * *

"Highway." The entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel. The term includes a roadway open to the use of the public for vehicular travel on grounds of a college or university or public or private school or public or historical park.


* * *

"Trafficway." 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.A. § 102. 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.


* * *

(b) High 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 at least 0.10% but
less than 0.16% 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), (b).

Section 1543 of the Motor Vehicle Code defines the offense of driving while operating privilege is suspended or revoked as follows:

§ 1543. Driving while operating privilege is suspended or revoked


* * *

(b) Certain offenses.

(1) A person who drives a motor vehicle on a highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3802 (relating to driving under influence of alcohol or controlled substance) or the former section 3731, because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3802 or former section 3731 or is suspended under section 1581 (relating to Driver's License Compact) for an offense substantially similar to a violation of section 3802 or former section 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days.
75 Pa.C.S.A. § 1543(b)(1).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Albert H. Masland, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed January 7, 2016, at 3-6) (finding: (1)-(2) officer's testimony established Appellant was sitting behind wheel of car, with motor running, while parked partially in roadway and partially on stranger's lawn; Appellant's husband was in passenger seat of car; Appellant's car heater was blowing strongly; officer detected strong odor of alcohol emanating from vehicle, and Appellant's eyes were glassy and bloodshot; Appellant was evasive as to why car was parked in that manner, and failed to produce requested identification; when Appellant exited vehicle, she was unsteady on her feet, slurred her speech, and continually changed her story about when she consumed alcohol and how much alcohol she consumed; officer spotted open bottle of wine in driver's side door, and empty bottle of wine in back seat; blood draw revealed Appellant had blood alcohol concentration of .134%; Appellant testified another person had driven her to that location to wait for another acquaintance who lived nearby; acquaintance for whom Appellant was supposedly waiting was out of state on night of incident; Appellant's testimony was incredible and unsubstantiated by acquaintance's testimony; Commonwealth presented Appellant's certified driving record, showing Appellant was under DUI-related license suspension; evidence demonstrated Appellant was in actual physical control of vehicle, and permitted inference Appellant had driven herself to that location; road where Appellant parked was open to public for vehicular travel, and constituted trafficway for purposes of DUI statute; thus, evidence was sufficient to sustain Appellant's convictions for DUI general impairment, DUI high rate of alcohol, and driving while operating privilege is suspended). Accordingly, we affirm on the basis of the trial court opinion.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/19/2016

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Summaries of

Commonwealth v. Ulen

SUPERIOR COURT OF PENNSYLVANIA
Sep 19, 2016
No. 1946 MDA 2015 (Pa. Super. Ct. Sep. 19, 2016)
Case details for

Commonwealth v. Ulen

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA Appellee v. THERESA M. ULEN Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 19, 2016

Citations

No. 1946 MDA 2015 (Pa. Super. Ct. Sep. 19, 2016)