March 10, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
THOMAS C. MURPHY Appellant
Appeal from the Judgment of Sentence dated April 13, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at Nos: CP-02-CR-0003387-2010, CP-02-CR-0011771-2010
BEFORE: BOWES, WECHT, and STABILE, JJ.
Appellant Thomas C. Murphy (Murphy) appeals from judgments of sentence of the Court of Common Pleas of Allegheny County (trial court), which, following a bench trial, convicted him of driving under the influence of alcohol (DUI) and speeding in violation of Sections 3802(a)(1), (a)(2), and (c),  and 3362(a)(3) of the Vehicle Code (Code). For the reasons set forth below, we affirm judgment of sentence at docket 3387 and vacate the judgment of sentence at docket 11771 and remand the case to the trial court for resentencing.
The facts underlying this appeal are undisputed. On January 19, 2010, Officer Peter Chuberko of Ross Township, Pennsylvania, filed a complaint against Murphy, charging him with violating Sections 3802(a)(1) and (c) of the Code on December 22, 2009 (First Case). In his affidavit of probable cause accompanying the complaint, Officer Chuberko alleged in part:
On December 22, 2009 at approximately [ 4: 43 a.m., ] I was notified by a passing Port Authority driver who advised me that a dark blue Chevrolet pick[ -] up truck sitting on Nelson Run Rd. with the driver slum ped over the steering wheel. Upon arrival[, ] I found a dark blue Chevrolet pick[ -] up truck bearing PA registration [ ] . The struck [ sic] was stopped facing North on Nelson Run Rd. at Sovereign St. in the travel lane. The truck's lights were on including the brake lights. When I approached the driver's window I noticed that the truck was in gear and the driver was laying on the steering wheel. I aroused him and spoke to him at the window. He was identified as [ Murphy] . I observed that his eyes were very glassy and his speech was slurred and thick[ -] tongued. He also had a very strong odor of an alcoholic beverage on his breath.
Affidavit of Probable Cause, 1/ 19/ 10. On March 10, 2010, a magisterial district judge held a preliminary hearing at which Murphy asserted that the Commonwealth failed to file the com plaint within five-days of his release from custody, as required by Pa.R.Crim.P. 519(B)(2).
On June 29, 2010, Pennsylvania State Trooper Christopher J. Robbins filed a com plaint against Murphy in connection with a separate incident that occurred on May 20, 2010 (Second Case). As a result of that incident, Trooper Robbins charged Murphy with violating, inter alia, Sections 3802(a)(1) and (b), and 3362(a)(3) of the Code. On August 24, 2010, a different magisterial district judge held a preliminary hearing on the Second Case. At the hearing, similar to the previous preliminary hearing, Murphy asserted that the Commonwealth failed to com ply with the five-day filing requirement of Rule 519(B)(2), because it did not file the com plaint relating to the May 20, 2010, incident until June 29, 2010.
On January 5, 2011, Murphy filed with the trial court a pretrial omnibus motion to dismiss the First Case, alleging that the Commonwealth failed to comply with the five-day filing requirement of Rule 519(B)(2). Murphy also asserted in his pretrial omnibus motion that the Commonwealth's evidence was insufficient to prove that Murphy's blood was drawn within two hours after he had been in actual physical control of the movement of the vehicle, as required by Section 3802(c) of the Code.
On July 26, 2011, Murphy filed with the trial court a pretrial omnibus motion to dismiss the Second Case. Murphy again asserted that the Commonwealth failed to comply with the five-day filing requirement of Rule 519(B)(2). Following a hearing, the trial court denied Murphy's motion relating to the Second Case. I n so doing, the trial court found that the Commonwealth "exceeded the five (5) day provision [ of Rule 519(B)(2)] by 34 days." Trial Court's Findings of Fact and Conclusions of Law, 9/ 11/ 2011, at 2. Notwithstanding the Commonwealth's violation, the trial court concluded that Murphy was not entitled to dismissal of charges. Specifically, the trial court concluded that Murphy did not establish that he suffered prejudice, as required by Pa.R.Crim.P. 109.
On October 6, 2011, following a bench trial, at which both cases were consolidated for disposition, the trial court found Murphy guilty of violating Sections 3802(a)(1) and (c) of the Code in the First Case and Sections 3802(a)(2) and 3362(a)(3) of Code in the Second Case.
Following the trial court's orders of sentence, Murphy appealed to this Court. The trial court issued an opinion in support of its order in accordance with Pa.R.A.P. 1925(a). In the opinion, the trial court found, inter alia:
On December 22, 2009, at approximately 4: 43 a.m., Ross Township Police Officer Peter Chuberko was waved down, in the area of Babcock and McKnight, by a Port Authority driver who informed Officer Chuberko of a dark colored [ sic] Chevy truck stopped in the middle of Nelson Run Road. The Port Authority driver's name was later found to be Dale Lesonick. Upon arrival at the scene, Officer Chuberko pulled up behind a dark blue Chevy truck in the lane of travel near Sovereign Street adjacent to McKnight Road. Officer Chuberko then exited his patrol car, approached the driver's side of the truck, and found [ Murphy] apparently sleeping with his head on his chest in the driver's seat.
Officer Chuberko testified that the truck was running, all lights (including the brake lights) were illuminated, and the vehicle was in the drive gear. He also testified that it took "quite a few" knocks on the window of the truck to wake [ Murphy] and alert [ Murphy] to his presence. Once roused, [ Murphy] first tried to offer his credit card as identification, but with help from Officer Chuberko was able to produce his driver's license. Officer noticed that [ Murphy's] eyes were glassy, [Murphy's] speech was slurred, and [ Murphy] has a strong odor of alcohol.
Trial Court Opinion, 8/ 7/ 12, at 4-5, 9-10 (internal record citations omitted).
Addressing Murphy's argument that it erred in denying his pretrial omnibus motion pertaining to the First Case, the trial court reasoned:
Under a Rule 109 analysis, dismissal is inappropriate unless the defendant would be prejudiced by the delay [ caused by the Commonwealth's noncompliance with Rule 519(B)(2)] . At the hearing, [ Murphy] had shown no evidence that he was prejudiced in any manner by the [ 27-day] delay. [ Murphy] argued that the delay made it impossible to recreate the night of the incident in the manner necessary to support his defense, although he made no offer of proof as to what evidence he sought to obtain that would have been uncovered had there been no delay.
Id. at 7. Based on its reasoning, the trial court concluded that Murphy failed to meet his burden of proving prejudice.
The trial court next addressed Murphy's argument that it erred in denying his omnibus motion relating to the First Case, because the evidence was insufficient to establish that his blood was drawn within two hours after he had been in actual physical control of the movement of the vehicle. First, finding that " [ t] he officer found [ Murphy] incapacitated in the driver's seat of the vehicle [ in a travel lane] at approximately 4: 43 a.m ." with the vehicle running, in the drive gear, and lights, including brake lights, illuminated, the trial court concluded that Murphy was in actual physical control of the vehicle. I d. at 8. The trial court then found that Murphy's blood was drawn at 5: 45 a.m. I d. at 9. Because he was in actual physical control of the vehicle at 4: 43 a.m . and his blood was drawn at 5: 45 a.m ., the trial court concluded that Murphy's blood draw fell within the two-hour requirement of Section 3802 of the Code.
The trial court lastly addressed Murphy's third argument that it had erred in denying his pretrial omnibus motion relating to the Second Case, because the Commonwealth failed to meet the five-day filing requirement of Rule 519(B)(2). Rejecting Murphy's argument that the 34-day delay in filing the complaint prejudiced him to the extent he was unable to locate witnesses, the trial court noted that "[ Murphy] failed to produce any evidence that information not part of the record would have been uncovered if the complaint had been filed within the requisite five (5) days." I d. at 12. Consequently, the trial court concluded that Murphy failed to establish that he suffered prejudice from the Commonwealth's delayed filing of the com plaint.
On appeal, Murphy repeats the issues that he raised before the trial court. First, he argues that the trial court erred in denying his pretrial omnibus motions to dismiss both cases, because the Commonwealth failed to com ply with the five-day filing requirement for com plaints under Rule 519(B)(2). Second, Murphy argues that the trial court erred in denying his omnibus pretrial motion to dismiss the First Case, because there was insufficient evidence to demonstrate that his blood was drawn within two hours after he had been in actual physical control of the movement of the vehicle.
Before addressing the merits of this appeal, we commend the Commonwealth for pointing out in its brief that there was a palpable clerical error in the sentencing order relating to the Second Case. As the Commonwealth notes, the order indicates Murphy was convicted and sentenced under Section 3802(b) of the Code, when in fact the trial court clearly convicted him under Section 3802(a)(2) of the Code. Based on our review of the record, we agree. Accordingly, we vacate the judgment of sentence at docket 11771 and remand this case to the trial court to resentence Murphy under the correct section of the Code.
Our standard of review in evaluating a denial of a pretrial omnibus motion for dismissal of a case on the basis of untimely filing of com plaint under Rule 519(B)(2) is whether the trial court abused its discretion, and our scope of review is limited to the trial court's findings and the evidence on the record, viewed in the light most favorable to the prevailing party. See generally Commonwealth. v. Miskovitch, 64 A.3d 672, 677 (Pa. Super. 2013), appeal denied, 78 A.3d 1090 (Pa. 2013). "Judicial discretion requires action in conform ity with law, upon facts and circumstances judicially before the court, after hearing and due consideration." Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (quoting Commonwealth v. Krick, 67 A.2d 746, 749 (Pa. Super. 1949)). "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence or the record, discretion is abused." I d. (quoting Commonwealth v. Jones, 826 A.2d 900, 907 (Pa. Super. 2003) (en banc)).
It is settled that where defendants seek the dismissal of a criminal complaint on the basis of a Rule 519(B)(2) violation, they must establish prejudice in accordance with Rule 109. See Commonwealth v. Schimelfenig, 522 A.2d 605, 613 (Pa. Super. 1987) (en banc); Commonwealth. v. Talarigo, 530 A.2d 1375, 1377 (Pa. Super. 1987). Commonwealth's failure to follow the rules of criminal procedures in initiating a case against a defendant does not in and of itself establish actual prejudice. See Commonwealth v. Lutes, 793 A.2d 949, 959 (Pa. Super. 2002) (citation omitted) (noting that appellants made no proffer as to what their lost potential witnesses would have testified to or, indeed, what they observed that would have assisted appellants in their case).
Here, although it is undisputed that the Commonwealth failed to comply with the five-day filing requirement of Rule 519(B)(2), Murphy has failed to establish prejudice as a result of the Commonwealth's delayed filing of the com plaints. As the trial court specifically found, Murphy did not make any "offer of proof as to what evidence he sought to obtain that would have been uncovered" had the Commonwealth filed the respective complaints within five days of his release from custody. Trial Court Opinion, 8/ 7/ 12, at 7, 12. We, therefore, conclude that the trial court did not err in denying Murphy's pretrial omnibus motions to dismiss based on Rule 519(B)(2) violations.
We next address Murphy's contention that the trial court erred in denying his omnibus pretrial motion to dismiss the First Case. Specifically, in contesting his charge under Section 3802(c) of the Code, he argues that there was insufficient evidence to demonstrate that his blood was drawn within two hours after he had been in actual physical control of the movement of the vehicle. We disagree.
Our standard and scope of review for a sufficiency claim is well-settled: 
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. I t is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The 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.
Commonwealth v. Mobley, 14 A.3d 887, 889–890 (Pa. Super. 2011). Additionally, "in applying the above test, the entire record must be evaluated and all evidence actually received must be considered." Commonwealth v. Coleman, 19 A.3d 1111, 1117 (Pa. Super. 2011).
To determine the timeliness of his blood draw, we must first examine whether Murphy was in actual physical control of his vehicle. In Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super. 2005), appeal denied, 899 A.2d 1121 (Pa. 2006), this Court analyzed the "actual physical control" component of the predecessor to Section 3802 and explained:
"The term 'operate' requires evidence of actual physical control of either the machinery of the motor vehicle or the management of the vehicle's movement, but not evidence that the vehicle was in motion." Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003). "Our precedent indicates that a combination of the following factors is required in determining whether a person had 'actual physical control' of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle." Commonwealth v. Woodruff, [ ] 668 A.2d 1158, 1161 (Pa. Super. 1995). A determination of actual physical control of a vehicle is based upon the totality of the circumstances. [ Commonwealth v.] Williams, [ 871 A.2d 254, ] 259 [ (Pa. Super. 2005)] . "The Commonwealth can establish through wholly circumstantial evidence that a defendant was driving, operating or in actual physical control of a motor vehicle." Johnson, supra at 263. Actual physical control requires m ore than evidence of a motorist starting the engine to a parked vehicle.
Our courts, therefore, have properly focused on the danger that defendant poses to society in determining what constitutes actual physical control. This danger or threat to society is not shown merely by proving that defendant started the engine of a car. It is shown through a combination of the factors discussed above. The cases support the conclusion that a showing that an intoxicated defendant started a parked car, without more, is not enough to prove actual physical control. The Commonwealth must show some additional facts to illustrate that defendant was a danger to public safety.
Commonwealth v. Byers, 437 Pa. Super. 502, 650 A.2d 468, 470 (1994).
Id. at 904-05. Moreover, in Commonwealth v. Grimes, 648 A.2d 538 (Pa. Super. 1994), this Court held that the Commonwealth met its burden of establishing that the defendant was in actual physical control of the vehicle when the defendant sat in the driver's seat of the pickup truck and continued to rev the engine. I d. at 544.
Here, in convicting Murphy under Section 3802(c) of the Code, the trial court specifically found that the police officer found Murphy incapacitated in the driver's seat of his vehicle at approximately 4: 43 a.m. in the lane of travel near Sovereign Street adjacent to McKnight Road. Trial Court Opinion, 8/ 7/ 12, at 8. The trial court also found that the vehicle's lights- including brake lights-were on and that the vehicle was running. I d. In particular, it found that the vehicle was in the drive gear. I d. Viewing the evidence in the light most favorable to the Commonwealth, and giving it the benefit of all reasonable inferences to be drawn from the evidence, we conclude that the evidence was sufficient for the trial court, as trier of fact, to determine that Murphy had actual physical control of the vehicle.
Addressing the question of whether Murphy's blood was drawn within two hours after he had been in actual physical control of the vehicle, we conclude that it was indeed. I n support of that conclusion, we point to the trial court's finding that the officer found him incapacitated in his vehicle at 4: 43 a.m. and his blood was drawn at 5: 45 a.m.-i.e., within the two-hour time frame. I d. at 8-9. We, therefore, conclude that the Commonwealth presented sufficient evidence to establish that Murphy's blood was drawn timely. Accordingly, we affirm the trial court's judgment of sentence in the First Case docketed at 3387 and vacate the judgment of sentence in the Second Case docketed at 11771 and remand the case to the trial court for resentencing.
Judgment of sentence at docket 3387 affirmed. Judgment of sentence at docket 11771 vacated and case remanded to the trial court for resentencing. Jurisdiction relinquished.