filed: June 26, 1981.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
JOHN A. MATSINGER
No. 2350 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 3096-79.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellant.
Richard B. Perlman, Norristown, for appellee.
Wickersham, Hoffman and Van der Voort, JJ.
[ 288 Pa. Super. Page 273]
The Commonwealth contends that the lower court erred in sustaining appellee's demurrer because the evidence was sufficient to warrant an inference that appellee had been driving while his license was suspended and while he was under the influence of alcohol. We agree and, accordingly, reverse the order of the lower court and remand for further proceedings.
[ 288 Pa. Super. Page 274]
It is well settled that the Commonwealth may appeal from an order sustaining a demurrer in a criminal case because the only question presented is one of law. See, e.g., Commonwealth v. Wimberly, 488 Pa. 169, 171, 411 A.2d 1193, 1194 (1979); Commonwealth, Department of Environmental Resources v. Lee Bowman Asphalt, Inc., 54 Pa. Commw. 71, 74, 420 A.2d 23, 25 (1980). "The test in determining the validity of a demurrer is whether the evidence of record and inferences reasonably drawn therefrom support a verdict of guilty." Commonwealth v. Mason, 211 Pa. Super. 328, 329-30, 236 A.2d 548, 549 (1967) (citations omitted). See also Page 274} Commonwealth v. Carroll, 443 Pa. 518, 526, 278 A.2d 898, 902 (1971). "In making such determination, we must read the evidence in the light most favorable to the Commonwealth's case." Commonwealth v. Green, 210 Pa. Super. 482, 484, 233 A.2d 921, 922 (1967) (citation omitted). See also In the Interest of Gonzales, 266 Pa. Super. 468, 469, 405 A.2d 529, 530 (1979). So viewed, the facts may be stated as follows.
On July 1, 1979, at approximately 3:30 a. m., Officer Andrew Curtis of the Franconia Township Police Department responded to a radio call and found two vans blocking a portion of Pennsylvania Route 113. A white van was parked facing south in the southbound lane, and appellee's green van was parked facing south in the northbound lane. A woman who was standing next to the driver's window of appellee's van told Officer Curtis that the driver appeared to be unconscious. After the woman departed in the white van, Officer Curtis approached appellee's van, and saw appellee sitting in the driver's seat and leaning against the door. He noticed also that the engine was running, the transmission was in gear, and the headlights were on. After an unsuccessful attempt to arouse appellee, Officer Curtis turned off the ignition and placed the transmission in neutral, whereupon he smelled a strong odor of alcohol about appellee's person. Officer Curtis and another policeman again attempted to awaken appellee, who responded with obscenities and refused to alight from his van. The officers then removed appellee from the van and placed him in the rear of Officer Curtis' patrol car. A breathalyzer test performed shortly after the arrest revealed that appellee had a blood-alcohol content of .19 percent. Subsequently, Officer Curtis discovered that appellee's driver's license had been suspended.
Appellee was charged with driving a vehicle while his operating privilege was suspended, 75 Pa.C.S.A. § 1543(a),*fn1
[ 288 Pa. Super. Page 275]
and while under the influence of alcohol, id. § 3731(a)(1).*fn2 At trial, Officer Curtis related the foregoing facts and opined that appellee was intoxicated. At the conclusion of the Commonwealth's evidence, appellee demurred on the ground that the Commonwealth had failed to establish that appellee's van had been in motion, an essential element of both offenses with which he had been charged. The lower court agreed and, accordingly, ordered appellee discharged.
In sustaining appellee's demurrer the lower court reasoned that the legislature, in enacting the current Motor Vehicle Code, "altered the elements of conduct which constitute offenses under [sections 1543 and 3731] by replacing the word 'operate' with the word 'drive,'" opinion of the Lower Court at 5, and thereby required the Commonwealth to present direct evidence that the vehicle was in motion at the time of the offenses charged, id. at 9-11. The lower court relied upon Commonwealth v. Brown, 268 Pa. Super. 206, 407 A.2d 1318 (1979), in which this Court, faced with comparable facts, held that the legislature had intended to restrict the range of conduct violative of section 3731 when it substituted the word "drive" for the word "operate." Id., 268 Pa. Super. at 208, 407 A.2d at 1319. In Brown, the lower court had equated the term "driving" with "operating" in instructing the jury on the elements of driving while under the influence of alcohol. Id. Finding the instruction to be incorrect, this Court stated:
[T]he trial court's instruction to the jury that the vehicle need not be in motion was error. In order to prove that a defendant charged with a violation of section 3731 "drove" a motor vehicle, evidence must be adduced that the vehicle was (at the time in question), in fact, in motion. The jury in this case, under the instructions actually given by the trial court, were not afforded the opportunity to examine the evidence according to the law.
[ 288 Pa. Super. Page 276]
Route 113, with its engine running, transmission in gear, and headlights on. Additionally, the Commonwealth showed that appellant, who reeked of alcohol, was asleep in the driver's seat of the van and that his driver's license had been suspended. Under these circumstances, we conclude that a finder of fact could infer beyond a reasonable doubt that appellee's van had been in motion and thus that appellee had violated sections 1543 and 3731. Consequently, the lower court erred in sustaining appellee's demurrer.
Order reversed and case remanded for further proceedings.