Appeal form the Judgment of Sentence in the Court of Common Pleas of Huntingdon County, Criminal Division, NO. 85-170 C.A.
Charles B. Swigart, Huntingdon, for appellant.
Stewart L. Kurtz, District Attorney, Huntingdon, for Com., appellee.
Wieand, Olszewski and Tamilia, JJ.
[ 362 Pa. Super. Page 111]
This is an appeal from judgment of sentence entered following a jury trial wherein appellant was convicted of driving under the influence.*fn1 Appellant, a first time offender, was sentenced to five (5) days to twenty three (23) months imprisonment.
On May 2, 1985, at approximately 2:25 a.m., State Trooper Richard Kuny observed appellant's vehicle parked along the berm of Pa. Route 26 in Huntingdon County. (N.T., 11/4/85, pp. 10, 11). Trooper Kuny found appellant slumped across the front seat of the car, with the motor running and the lights on. (N.T., 11/4/85, p. 11). Trooper
[ 362 Pa. Super. Page 112]
Kuny eventually roused appellant from a deep sleep, and based upon observations of appellant's demeanor, placed him under arrest. (N.T., 11/4/85, p. 13). A subsequent intoxilizer test performed at the Pennsylvania State Police barracks revealed appellant had a blood/alcohol content of 0.19%. (N.T. 11/14/85, p. 13).
Appellant now argues that even if the evidence presented by the Commonwealth was legally sufficient to prove that he was, at the time he was observed by Trooper Kuny, under the influence of alcohol to a degree which rendered him incapable of safe driving, there was not sufficient evidence to prove that he either drove, operated, or was in actual physical control of the movement of a vehicle.
The test for reviewing a sufficiency of the evidence claim on appeal from a criminal conviction is well settled:
[W]hether, viewing the evidence in the light most favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt . . . . 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 trial 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 to be afforded the evidence produced, is free to believe all, part or none of the evidence. (Citations omitted).
Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986), citing Commonwealth v. Harper, 485 Pa. 572, 576-77, 403 A.2d 536, 538-39 (1979).
Driving Under the Influence of Alcohol or Controlled Substance, 75 Pa.C.S.A. § 3731 (a)(1) provides:
(a) offense defined. -- A person shall not drive, operate or be in actual physical control of the ...