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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NON-PRECEDENTIAL DECISION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 preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented.

Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa.Super. 2011). Moreover, it is well settled that

[t]he Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Id.

Appellant was convicted of DUI - general impairment. The applicable statue provides as follows:

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.

75 Pa.C.S. § 3802(a)(1). "With respect to what constitutes 'actual physical control' in this Commonwealth, the courts have held that whether a person is in actual physical control of a motor vehicle is determined based on the totality of the circumstances, including the location of the vehicle, whether the engine was running and whether there was other evidence indicating that the defendant had driven the vehicle at some point prior to the arrival of police on the scene." Commonwealth v. Wolen, 685 A.2d 1384, 1385 (Pa. 1994) (citing Commonwealth v. Byers, 650 A.2d 468, 469 (Pa.Super. 1994)). Moreover,

the Commonwealth need not prove that the vehicle was in motion at the time of the incident, but rather, must simply prove that the defendant was in actual physical control over the vehicle, and was, thus, a threat to public safety. The concept of "actual physical control" involves the control of the movements of either the machinery of a motor vehicle or of the management of the vehicle itself, without a requirement that the entire vehicle be in motion.

Commonwealth v. James, 863 A.2d 1179, 1184 (Pa.Super. 2004) (en banc) (citations omitted).

In support of his argument Appellant directs our attention to a number of cases, [3] each of which he contends "presented evidence more convincing of guilt than the case at hand." Appellant's Brief at xvi. Specifically, Appellant argues that "actual physical control" is exhibited only in those cases where "a vehicle [has] its engine running, a still warm engine, or a physical location upon a public roadway, " none of which was present in this case. Id. Further, Appellant cites Commonwealth v. Price, 610 A.2d 488 (Pa.Super. 1992), for the proposition that mere presence in the driver's seat of a vehicle, without more, is insufficient to establish that he was in actual physical control of the vehicle. Appellant's Brief at xvi-xvii.

In Price, a state trooper received a report of a car being driven recklessly. 610 A.2d at 488-489. Upon arrival at the reported location, the trooper observed a vehicle with a flat tire and broken rim. Id. Price was observed in the driver's seat; however, the vehicle was not running, the keys were not in the ignition and the lights were not on. Id. It was determined that the damage to the vehicle had rendered it inoperable. Id. He was ultimately arrested on suspicion of DUI. Id. At trial, Price testified that his girlfriend had been driving before the vehicle broke down, and that she left Price with the vehicle while she went to get assistance. Id. Based upon these facts, the jury found that Price had been in actual physical control of the vehicle. Id.

On appeal, this Court determined that the verdict slip provided to Price's jury was insufficient and its verdict was predicated upon a finding that Price was in actual physical control of the then-inoperable vehicle after police arrived (rather than before). Accordingly, this Court reversed, stating,

[m]erely because Price sat in the driver's seat of the car, which was not running . . . does not rise to the level of actual physical control necessary to support a conviction for driving under the influence … actual physical control [involves], at a very minimum, a parked car … [which has been] started and [is] running.

Id. at 490 (emphasis in original).

Appellant's reliance on Price is misplaced. The instant case was a nonjury trial wherein the trial court determined that Appellant was in actual physical control of an operable vehicle while intoxicated. The trial court, in rejecting Appellant's argument, explained as follows.

Here, there is an abundance of circumstantial evidence that supports a finding of driving under the influence sufficient to sustain [Appellant's] convictions. [Appellant] was found in the driver's seat of his car, which was parked off the side of Cemetery Road. [Appellant] does not own the land where his vehicle was found, nor does the space lead to anywhere. The only way for the vehicle to have reached this area was from the roadway. The vehicle did not just appear there magically. Furthermore [Appellant] admitted that he drove his vehicle to that location. [Appellant] also had possession of the keys and had them readily available to start the car at anytime, which in fact he did after being asked to roll down the window.
[Appellant] speculates in his argument, without producing any evidence, that he might have consumed alcohol in his van only after parking there. Despite this assertion, the trooper testified that he did not find any alcohol containers in the vehicle while looking for [Appellant's] cell phone. [Appellant] also speculates that he may have planned on staying at the location over night. The evidence does not support this argument. There were no sleeping accouterments, camping gear, pillows, or blankets. [Appellant] was in the front seat of the vehicle slumped over the wheel. [Appellant's] seat was not reclined nor was there anything that indicated that he was planning on making a night of sleeping out on this property. Furthermore [Appellant's] answers to Trooper Dilijonas's questions suggest a person who was driving to no particular destination and certainly not to where he was at the time.
The absence of a liquor bottle at the scene or any alcohol containing vessel, along with the [Appellant's] statement that he had been drinking "hours ago" while "in the vehicle" infers [sic] that he was literally drinking while in the process of driving, and then he discarded the container prior to parking at the location where he was found. The evidence supports the factual finding that this [Appellant] entered his car sometime in the afternoon with a container of some form of intoxicating beverage or liquor and then drove about to "nowhere" until his container was empty when he decided to pull off Cemetery Road to sleep it off for a bit.

Appellant's best argument for acquittal is that he pulled off to the side of the road and put his keys in his pocket, intending to remain there until he sobered up. The Pennsylvania Supreme Court has discredited the "sleeping it off" defense, and with good reason.

The legislature has reasonably determined that one driving a motor vehicle on the public streets and highways of the Commonwealth while under the influence of alcohol or controlled substances constitutes a threat to public safety per se, even if there are no other members of the public immediately endangered. While it may be laudable that one who realizes that he is incapable of safe driving pulls over to "sleep it off, " the legislature has made no exception to the reach of the statute to such individuals. Accordingly, such a person's threat to public safety is not a relevant consideration under the drunk driving statutes.

Commonwealth v. Wolen, 685 A.2d 1384, 1386 n. 4 (Pa. 1996 (plurality). Trial Court Opinion, 12/3/2013, at 5-7.

Based upon the forgoing circumstantial evidence, we find no error in the trial court's determination that Appellant had actual physical control of the vehicle. Accordingly, we hold that the evidence was sufficient to find him guilty of DUI - general impairment.

Judgment of sentence affirmed.

Judgment Entered.


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