J

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____________________________________ * Retired Senior Judge assigned to the Superior Court. NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT J. MORRISON

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1824 MDA 2017
Appeal from the Judgment of Sentence October 24, 2017 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP

- 21

- CR

- 0001770

- 2017

BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY BOWES, J.: FILED AUGUST 17, 2018
Robert J. Morrison appeals from the October 24, 2017 judgment of
sentence of county imprisonment of one year less one day to two years less
one day, and a fine . The sentence was i mposed following Appellant’s

con viction by a jury of driving under the influence (DUI)

– general impairment,

and a bench trial on the offense of driving without an ignition interlock device.

We affirm.
We glean the following facts from the transcript of the trial held on
September 12 , 2017. At all times relevant hereto, Joseph McCardell was the
general manager of the Wine and Spirit Store , operated by the Pennsylvania
Liquor Control Board, in Shippensburg, Pennsylvania

. He explained that the
Board has a policy prohibiting the sale o f liquor to persons who are intoxicated
in order to prevent drinking and driving. N.T., 9/12/17 , at 9. Mr. McCardell

testified that he was working on March 15, 2017, at approximately 11:30 a.m.,J

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and observed Appellant as he exited a white van and entered the store. He
stated that Appellant was stumbling and swaying as he approached the
register to purchase a bottle of vodka. At the checkout counter, Mr. McCardell

could smell alcohol on Appellant’s breath. Believing Appellant to be

intoxicated, Mr. McCa rdell refused to sell him the vodka.

Mr. McCardell watched Appellant as he exited the store and climbed into

the driver’s seat of a white van. Fearing that Appellant would drive away, the

manager placed a 911 call to police. He subsequently observed Appellant

move the van to another parking space approximately one hundred yards

away. Id . at 12

- 13.
Trooper Nathan Grossman of the Pennsylvania State Police was
dispatched to the liquor store in response to the 911 call. Using a description
of Appellant and the vehicle provided by Mr. McCardell, the trooper was able
to locate Appellant. He confirmed that the registration plate number of the
van matched that given by Mr. McCardell, and observed Appellant in the

driver’s seat. There was no one else in th e van. Appellant complied with the
trooper’s directive to exit the vehicle , stumbling as he did so.
In his initial encounter with the trooper, Appellant denied that he had
been in the liquor store. He then admitted that he had tried to purchase liquor

but had been refused service. The trooper described Appellant as disheveled,

with glassy and bloodshot eyes. T he trooper stated that Appellant slurred his
words as he talked and the trooper smelled the odor of alcohol on his breath.
Appellant admitted t hat he had been drinking earlier in the day but was notJ

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forthcoming about what he consumed or the amount. Appellant told the
trooper that his father had driven there and that h is father was in the nearby

Walmart. Id . at 24. As t he trooper waited with Ap pellant for his father to

appear , he attempted to conduct the walk

- and

- turn and one

- foot

- stand field
sobriety test s . A ppellant refused to cooperate

. After thirty

- five to forty
minutes, Appellant admitted that his father was not in Walmart and had not

dri ven him there. Appellant insisted , however, that he did not drive to the

store.
Based on his training and experience, as well as his interaction with
Appellant, Trooper Grossman concluded that Appellant was incapable of safe
driving and placed him under arrest. Appellant was transported to a nearby
hospital where he refused to submit to a blood test.
While the DUI charge was pending before the jury, a brief bench trial on
the ignition interlock offense was conducted. A certified copy of the PennDot
record for Appellant , which reflected that Appellant had a n ignition interlock

license , was introduced at the bench trial. 1 Trooper Grossman testified that
the white van in which Appellant was located on March 15, 2017, did not

contain the ignition inter lock. The trial court found Appellant guilty of driving
without the required ignition interlock system ; the jury returned a guilty
verdict on the DUI charge.

_________________ __________ ______ ____ _______

1 An ignition interlock license means that the license holder can only d rive a car where the ignition interlock system is installed.J

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Following his sentencing, Appellant filed a timely appeal to this Court.

He presents two issue s for our review:

I. Whether the evidence presented at trial was sufficient to sustain a conviction for driving under the influence when the Commonwealth failed to prove that [Appellant] was driving, operating, or was in actual physical control of the vehicl e?

II. Whether the evidence presented at trial was sufficient to sustain a conviction for driving without an ignition interlock device when the Commonwealth failed to prove that [Appellant] drove the vehicle?

Appellant’s brief at 5.

Appellant challenges the sufficiency of the evidence underlying both of

his convictions. The standard we apply in reviewing such claims

is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to en able the fact

- finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence a nd substitute our judgment for the fact

- finder. In addition, we note that the facts and circumstances establishe d by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant ’ s guilt may be resolved by the fact

- finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances.

Commonwealth v. Giordano , 121 A.3d 998, 1002

- 03 (Pa.Super. 2015 )

(quoting Commonwealth v. Cahill , 95 A.3d 298, 300 (Pa. Super. 2014) )

. Evidence is sufficient to support the verdict when it establishes each material

elem ent of the offense charged beyond a reasonable doubt. Commonwealth

v. Ansell , 143 A.3d 944, 949 (Pa.Super. 2016).J

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Both the offenses of DUI

- general impairment and failure to use ignition

interlock system contain the element of driving a motor vehicle. See 75

Pa.C.S. § 3802(a)(1) (DUI

- general impairment: “ 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. § 3808(a)(1) ( driving without required

ignition interlock : “An individual required to only drive, operate or be in actual

physical control of the movement of a motor vehicle equipped with an ignition

interlock system under any of the following who drives, operates or is in actual

physical control of the movement of a motor vehicle within this

Commonwealth . . .” ).

Appellant does not dispute the sufficiency of the evidence that he was
impaired or that he was a person required to only drive or operate a vehicle

specially equipped with an ignition interlock system. Rather, h e challenges

the sufficiency of the Commonwealth’s proof that he was dr iving or in actual

physical control of the vehicle, an element of both crimes of which he was

convicted. Hence, we will address both issues together.

Appellant contends that the Commonwealth only established that he

was seated in the vehicle when they a rrived, not that he actually drove it. He

argues that Mr. McCardell’s testimony that he saw him drive into the parking

lot of the liquor store lacked credibility because the eyewitness did not reportJ

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th is information to police at the time. The Commonweal th counters that

credibility issues implicate the weight of the evidence, not its sufficiency. See

Commonwealth v. Melvin , 103 A.3d 1, 43 (Pa.Super. 2014). Furthermore,

the Commonwealth points out that w eight challenges must be preserved

either on the re cord prior to sentencing or in a post

- sentence motion , and

s ince Appellant did neither, the issue is waived. Moreover, the Commonwealth

contends that the evidence that Appellant drove the vehicle was more than

sufficient to support his convictions.

A ppellant’s attempt to discredit Mr. McCardell’s eyewitness testimony

that he saw Appellant drive into the store parking lot presents a challenge to

the weight of the evidence, not its sufficiency. Since Appellant did not raise

the issue orally, in a writt en motion prior to sentencing, or in a post

- sentence

motion, it is waived. See Pa.R.Crim.P. 607(A) (“A challenge to the weight of

the evidence must be ‘ raised with the trial court in a motion for a new trial:

(1) orally, on the record, at any time before sentencing; (2) by written motion

at any time before sentencing; or (3) in a post

- sentence motion. ’ ”).

As to the sufficiency of the evidence that Appellant drove the van, Mr.

Mc Cardell’s testimony that he saw Appellant drive the van into the lot is legal ly

sufficient to support the conviction. Moreover, A ppellant fails to acknowledge

that Mr. Mc Cardell also testified that he observed Appellant as he returned to

the white van, enter ed the driver’s seat, and dr o ve the vehicle more than one

hundred yards to another parking space. Thus, the record reveals that theJ

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eyewitness saw Appellant drive the van on two occasions. 2 Viewing the

evidence in the light most favorable to the Commonwealth as the verdict

winner, there is no merit in Appellant’s claim that th e Commonwealth failed

to prove that he drove the v ehicle.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/17/18

_________________ __________ ______ ____ _______

2 Appellant asserted below, but abandoned on appeal, the argument that the parking lot was not a highway or trafficway for purposes of the DUI statute. Title 75 Pa.C.S. § 3101 (b), provides that offenses “ relating to driving after imbi bing alcohol or uti lizing drugs shall apply upon highways and trafficways throughout this Commonwealth. ” A trafficway is defined as “[t] he entire width between property lines or other boundary lines of every way or place of which any part is open to the public for purposes of vehicular travel as a matter of right or custom. ” See 75 Pa.C.S. §102 ; see also Commonwealth v. Proctor , 625 A.2d 1221 (Pa.Super. 1993) (holding parking lot open to the public is a trafficway for purposes of DUI statute).