J-S79027-14

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DANIEL BOMBARO,

Appellant No. 932 EDA 2014

Appeal from the Judgment of Sentence of March 12, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014488-2013

BEFORE: ALLEN, OLSON and STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED JANUARY 28, 2015

Appellant, Daniel Bombaro, appeals from the judgment of sentence 

entered on March 12, 2014, following his bench trial convictions for three 

counts of driving under the influence (DUI) of alcohol, a controlled 

substance, and a combination of a controlled substance and alcohol.1 Upon 

review, we affirm.

The trial court aptly summarized the facts of this case as follows:

In response to a radio call, on April 18, 2013 at 

approximately 6:46 [p.m.] [in] the area of 429 West 

Susquehanna Avenue, Officer Nelson Leon observed 

[Appellant] inside a white Honda Sonata. Susquehanna 

Avenue is a large one lane street, and [Appellant] was 

parked to the right side of the street against the curb. The 

car was parked at an angle facing towards the street with 

____________________________________________

1

 75 Pa.C.S.A. §§ 3802(a)(1), (d)(1), and (d)(3), respectively.
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the windows rolled up. The keys were in the ignition and 

the car was running. [Appellant] was behind the driver’s 

seat, unconscious, and slumped over towards the 

passenger’s seat. He was also sweating profusely. Inside 

the car, Officer Leon observed a syringe wrapper in 

[Appellant’s] hand and also a needle on the floor of the 

passenger side. [Appellant] failed to wake up even after 

Officer Leon knocked on the window a couple of times. 

Officer Leon then opened the door and shook him to wake 

him up. However, [Appellant] did not wake up until the 

medics came.

Once [Appellant] woke up, Officer Leon asked him a few 

questions, but [Appellant] had trouble answering them. His 

speech was slurred and muffled. Officer Leon then asked 

him if he consumed drugs or alcohol, and [Appellant] 

informed the [o]fficer that he had used heroin earlier that 

day. [Appellant] was unable to maintain his balance after 

he exited the vehicle and needed the support of Officer Leon 

to remain standing. At that point, he was placed under 

arrest for DUI.

Trial Court Opinion, 6/16/2014, at 1-2.

Procedurally, the case progressed as follows:

On March 12, 2014, [Appellant] was found guilty of [the 

aforementioned counts of DUI]. He was sentenced to 72 

hours to 6 months of incarceration, and was further ordered 

to participate in drug or alcohol screening and treatment 

programs, including outpatient and inpatient programs. His 

license was suspended for a year, and he was ordered to 

participate in Highway Safety School. [Appellant] was 

paroled immediately after serving 72 hours. 

 

Defense counsel filed a timely appeal on March 28, 

2014. [On May 14, 2014, the trial court ordered Appellant 

to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).] [Appellant’s] [s]tatement of 

[e]rrors complained [of] on [a]ppeal was filed on June 3, 

2014. [The trial court issued an opinion pursuant to 

Pa.R.A.P. 1925(a) on June 16, 2014.]

Id. at 1. 
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On appeal, Appellant presents the following issue for our review:

Was not the evidence insufficient to convict [A]ppellant of 

driving under the influence of a controlled substance where 

the Commonwealth failed to prove that [A]ppellant had 

actual, physical control of the vehicle?

Appellant’s Brief at 3.

Appellant claims that there was insufficient evidence presented to 

prove he was in physical control of the vehicle in question. More specifically, 

he claims:

[T]here was a reasonable inference that [A]ppellant did not 

drive to the area under the influence, but rather drove to 

the area sober, bought drugs in the neighborhood, and 

returned to the car where he ingested the drugs in his car, 

as evidenced by the syringe found in his hand and the 

needle found in the car.

Id. at 14. Appellant contends that the fact that he “started the parked car, 

without more, [was] not enough to prove actual physical control.” Id. at 12. 

Appellant relies upon our 1994 decision in Commonwealth v. Byers, 650 

A.2d 468 (Pa. Super. 1994) for the proposition that the car’s location 

negated any inference that the car had been moved. Id. at 13-14.

When reviewing a sufficiency of the evidence claim, our standard of 

review is as follows:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable 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 

and substitute our judgment for the fact-finder. In addition, 

we note that the facts and circumstances established by the 
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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. 

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 record must be evaluated and all 

evidence actually received must be considered. Finally, the 

finder of fact while passing upon the credibility of witnesses 

and the weight of the evidence produced, is free to believe 

all, part or none of the evidence.

Commonwealth v. Karns, 50 A.3d 158, 161 (Pa. Super. 2012) (citation 

omitted).

Appellant was convicted of three counts of DUI. The relevant statutory 

provisions provide:

(a) General impairment.—

(1) 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.

* * *

(d) Controlled substances.--An individual may not drive, 

operate or be in actual physical control of the movement of 

a vehicle under any of the following circumstances:

(1) There is in the individual's blood any amount of a:

(i) Schedule I controlled substance, as defined in the 

act of April 14, 1972 (P.L. 233, No. 64), known as 

The Controlled Substance, Drug, Device and 

Cosmetic Act;
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(ii) Schedule II or Schedule III controlled substance, 

as defined in The Controlled Substance, Drug, 

Device and Cosmetic Act, which has not been 

medically prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) 

or (ii).

* * *

(3) The individual is under the combined influence of alcohol 

and a drug or combination of drugs to a degree which 

impairs the individual's ability to safely drive, operate or be 

in actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802 (footnote omitted). There is no dispute that heroin is a 

controlled substance covered under Subsection 3802(d).

Here, Appellant contends that there was insufficient evidence that he 

was operating, or in physical control of, the vehicle in question. Our Court 

has determined:

The term “operate” requires evidence of actual 

physical control of the vehicle to be determined based upon 

the totality of the circumstances. 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. The Commonwealth can establish 

that a defendant had “actual physical control” of a vehicle 

through wholly circumstantial evidence. 

Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (citations 

omitted).

Our decision in Commonwealth v. Toland, 995 A.2d 1242 (Pa. 

Super. 2010) is instructive. In that case,
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the evidence established that [Toland] was asleep in the 

driver's seat of the vehicle with the motor running and the 

headlights illuminated. There was a cold, unopened six-pack 

of beer on the floor behind the driver's seat. [Appellant’s car 

was found, as] described in the affidavit of probable cause 

[parked in front of] a “store” and there is no indication that 

it sells alcoholic beverages. A reasonable inference could be 

made that [Toland] drove to that location. Although 

circumstantial, the evidence was sufficient for the trial court 

to conclude, as the finder of fact, that [Toland] was in 

actual physical control of the movement of the motor 

vehicle. 

Toland, 995 A.2d at 1246.

Moreover, in Toland, we distinguished our earlier decision in Byers:

In [Byers], [Byers] was discovered sleeping in the 

driver's seat of a parked car. The car was sitting in the 

parking lot of the Twin Rocks Lounge, a drinking 

establishment. The engine was running and the headlights 

were on, but the car was not in motion. On these facts, a 

panel of this [C]ourt held that the Commonwealth did not 

introduce enough evidence to show actual physical control. 

We held that the Commonwealth must show some 

additional facts to demonstrate that an intoxicated 

defendant is a danger to public safety beyond merely 

starting a parked car. After noting that the purpose of the 

drunk driving laws is to keep intoxicated drivers off of the 

road and to protect the public at large, the Byers court 

stated: “In the present case, Byers never got onto the road 

and was not a threat to public safety. The Commonwealth is 

trying to encourage intoxicated people to ‘sleep it off’ before 

attempting to drive, yet it wants us to punish Byers for 

doing just that.” [Byers,] at 471.

While not overruled, the approach in Byers was strongly 

criticized by the Pennsylvania Supreme Court in 

Commonwealth v. Wolen, 685 A.2d 1384 (Pa. 1996) 

(plurality):

Under the circumstances of [Byers], the Superior 

Court held that there were insufficient facts to prove 

that the defendant posed a safety hazard to the
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public, and therefore the Commonwealth had failed 

to establish that he was in actual physical control of 

the vehicle. Byers, 650 A.2d at 470. The Byers

Court reasoned that penalizing a person for “sleeping 

it off” with the engine running for a purpose other 

than driving the vehicle (for example, to provide 

heat, operate the radio or power a car phone) would 

defeat this laudable purpose. Id. at 471. However, 

nowhere in the statute is there a requirement that 

the fact-finder should consider whether or not one in 

actual physical control of a vehicle and under the 

influence of alcohol or controlled substances poses a 

threat to public safety. 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.

Wolen, 685 A.2d at 1386 n. 4. Although Wolen, as a 

plurality decision, is not binding on this court, the 

soundness of the reasoning in Byers has been called into 

question.

At any rate, Byers is distinguishable on its facts [from 

Toland]. In [Byers], the defendant had not moved his car 

from the private parking lot of the bar where he had been 

drinking. Byers, 650 A.2d at 470. [In Toland], the 

defendant was parked on a public street in front of a store. 

While it is unclear from the record where [Toland] had been 

drinking prior to his arrest, appellant was not sitting in the 

parking lot of a bar, as in Byers. As the trial court states, 

the presence of a cold, unopened six-pack of beer in 

[Toland’s] car indicates that he was not “sleeping it off” but 

intended to drive his vehicle to his home or some other 

location to continue drinking and become even more 
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intoxicated. Assuming Byers remains good law, it is 

factually inapposite and [Toland’s] reliance on it is 

misplaced [and his] sufficiency claim fails.

Commonwealth v. Toland, 995 A.2d 1242, 1246-47 (Pa. Super. 2010) 

(some citations and quotations and original brackets omitted).

In this case, the trial court concluded that Appellant was in actual 

physical control of the vehicle, opining:

Under the totality of the circumstances, [Appellant] was 

clearly in “actual physical control” of the vehicle. Officer 

Leon found [Appellant] unconscious and slumped over 

towards the passenger side of the vehicle. [Appellant] 

parked the car in a high drug area, with the keys in the 

ignition and the car running. The car was parked at an 

angle instead of being parked straight against the curb. As 

[precedent indicates], when the location of the vehicle is in 

a suspect location, a red flag is to be raised. [Appellant] 

even testified that he pulled off after an emotional situation 

with his former wife and was going through Northern 

Liberties, which is an area in Philadelphia. The 

circumstantial evidence does not support the idea that 

[Appellant] sat in a parked car there just to “cool off” after 

a heated argument. Instead, all evidence points to the 

conclusion that he was driving under the influence before he 

decided to park. 

Trial Court Opinion, 6/16/2014, at 5 (footnote and record citations omitted). 

Initially we note that in the case sub judice, Appellant argues the facts 

in the light most favorable to himself, in contravention of our standard of 

review. Moreover, the facts of this case more closely resemble those as 

presented in Toland, rather than Byers. Appellant was found unconscious 

behind the wheel of a car, the engine was running, and the car was parked 

slightly askew on the street in a residential neighborhood. In Byers, the 

facts presented showed Byers had been imbibing in alcohol in a particular 
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location and had passed out before moving his car from the drinking 

establishment’s parking lot. Here, however, as in Toland, it is unclear from 

the record where Appellant partook of the heroin. However, based upon the 

totality of the circumstances viewed in the light most favorable to the 

Commonwealth as the verdict winner, we agree that there was sufficient 

evidence to support Appellant’s convictions. More specifically, the car was 

parked at a slight angle on a city street with the engine running and 

Appellant was found unconscious in the driver’s seat. See N.T., 3/25/2014, 

at 11, 13-14. Appellant had a syringe wrapper in his hand and there was a 

hypodermic needle found on the floor of the rear passenger side. Id. at 16-

17. Appellant admitted to using heroin earlier that day. Id. at 11. Unlike in 

Byers, here there was no reliable indicia that Appellant used intoxicating 

substances and merely got into the vehicle to sleep it off. Thus, we agree 

with the trial court that there was sufficient evidence to support Appellant’s 

DUI convictions.

In addition, we note that at trial Appellant stipulated that his blood 

alcohol level showed he was intoxicated. Id. at 20-21. There was 

absolutely no evidence to suggest that Appellant had imbibed any alcohol 

after parking his vehicle. The investigating officer did not testify to seeing or 

recovering any open or empty containers from the vehicle. Accordingly, the 

Commonwealth circumstantially proved that Appellant ingested alcohol 

before driving. Thus, for this alternative reason, we affirm Appellant’s 

general impairment conviction under 74 Pa.C.S.A. § 3802(a)(1). See
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Commonwealth v. O'Drain, 829 A.2d 316, 322 (Pa. Super. 2003) (“We 

note that this court may affirm the decision of the trial court if there is any 

basis on the record to support the trial court's action; this is so even if we 

rely on a different basis in our decision to affirm.”). 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/2015