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[U] Commonwealth v. Hribik

Superior Court of Pennsylvania

March 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FRANK L. HRIBIK, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence entered August 9, 2012, in the Court of Common Pleas of Crawford County, Criminal Division, at No(s): CP-20-CR-0000808-2011

BEFORE: PANELLA, ALLEN, and STRASSBURGER [*] , JJ.

MEMORANDUM

STRASSBURGER, J.

Frank L. Hribik, Jr. (Appellant) appeals from the judgment of sentence entered on August 9, 2012, as made final by the denial of Appellant's post-sentence motion on December 3, 2012.[1] We affirm.

The trial court aptly set forth the relevant factual and procedural history of this case as follows.

On September 2, 2011, Trooper Timothy Dilijonas of the Pennsylvania State Police Department was on routine patrol and was dispatched to the area of 22198 Cemetery Road for [a] report of a vehicle along the road with an individual slumped over the wheel. Upon arriving Trooper Dilijonas observed a mint green mini van, determined to be driven by [Appellant]. The vehicle was parked off to the right side of the road in what looked like a concrete private driveway. Trooper Dilijonas recalls there being some type of building or garage there but no residence. As the investigation continued, Trooper Dilijonas observed [Appellant] unconscious, very sweaty and slumped over in the driver's seat of the vehicle. The car was off with no keys in the ignition. Despite it being a very warm summer day, all of the windows were rolled up. Trooper Dilijonas testified that he knocked on the window several times in an effort to awaken [Appellant]. After successfully waking [Appellant] he asked questions to which he received no answer. Trooper Dilijonas testified that he believed [Appellant] could not hear him and consequently asked [Appellant] to roll down his window. [Appellant] responded by touching most of the controls in the vehicle but was unsuccessful due to the car being off. [Appellant] then reached into his front left pocket and pulled out his keys. He turned on the car and lowered the window. Trooper Dilijonas immediately realized [Appellant] was under the influence by the strong odor of alcohol emanating from the car, [Appellant's] demeanor and his glassy, bloodshot eyes.
Trooper Dilijonas asked [Appellant] to step out of the vehicle and he administered a field sobriety test, which [Appellant] failed. After concluding [Appellant] was under the influence of alcohol, Trooper Dilijonas advised [Appellant] he would be placed under arrest for [driving under the influence (DUI)]. Trooper Dilijonas asked [Appellant] if he had a phone or anything he needed to take with him. [Appellant] replied that he had a cell phone and gave Trooper Dilijonas permission to search the vehicle for the phone. Trooper Dilijonas testified that he searched around the driver['s] seat, underneath the front seat, in the ashtray area, flipped down the visors, checked between the two seats on the passenger seat, glanced behind the seats into the second row seating area and moved around some items in an attempt to locate the cell phone. During the search for the cell phone, Trooper Dilijonas denies ever seeing any alcoholic beverages, full or empty, in or around the vehicle. [Appellant] was taken to the Meadville Medical Center and a chemical test was administered. [Appellant] was determined to have a blood alcohol content of greater than .30 percent.
[Appellant] was then transported to the Meadville Barracks where Trooper Dilijonas asked [Appellant] questions from a standard questionnaire. First he asked him where he was coming from to which [Appellant] replied he was just out for a ride. The second question was "what time did you leave" to which [Appellant] responded around noon. Trooper Dilijonas then asked [Appellant] where he was going, to which [Appellant] replied "nowhere." He then asked [Appellant] when he ate last and was told eleven o'clock a.m. When asked if he consumed any alcoholic beverages, [Appellant] indicated that he had but would not say what type or how much. Lastly Trooper Dilijonas asked [Appellant] when and where he had his last drink, to which [Appellant] responded hours ago, "in the vehicle."
[Appellant] was convicted on July 3, 2012, following a nonjury trial of [DUI - general impairment], 75 Pa.C.S.A. 3802(a)(1). On August 20, 2012 [Appellant] filed a timely post-sentence motion in which [Appellant] requested relief in the form of arrest of judgment, and a motion for a new trial. [Appellant] raises a number of challenges including sufficiency of the evidence, weight of the evidence, and denial of his pretrial motion to suppress.

Trial Court Opinion, 12/3/2012, at 1-2.

On appeal, Appellant challenges the sufficiency of the evidence presented at trial. Appellant's Brief at ix.[2] Appellant argues that the trial court erred in finding him guilty because he was not in actual physical control of the vehicle when the state trooper found him, stating "at best, the evidence presented by the Commonwealth portrays an intoxicated man, sleeping in his vehicle which was not running and was not even located upon the roadway." Id. at xiv.

Our standard of review regarding a sufficiency challenge is as follows:
We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. The evidence established at trial need not ...

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