J-S54024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHRISTOPHER S. HOFFER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 333 MDA 2019

Appeal from the Judgment of Sentence Entered September 19, 2018

In the Court of Common Pleas of Lebanon County Criminal Division at 

No(s): CP-38-CR-0000463-2017

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 29, 2019

Christopher S. Hoffer appeals from his judgment of sentence, entered 

in the Court of Common Pleas of Lebanon County, after a jury found him guilty 

of two counts of driving under the influence (DUI)—controlled substance.

1

Upon careful review, we affirm.

The facts of this case are as follows:

At trial, the Commonwealth called Travis Martin, a paramedic with 

First Aid and Safety Patrol of Lebanon[,] as a witness. Mr. Martin 

testified that on December 14, 2016, at approximately 3:00 P.M., 

he responded in an ambulance to a call at 4th and Pershing Streets 

in Lebanon. When he arrived, Mr. Martin found an unconscious 

male, later identified as [Hoffer], in the driver[-]side seat of a 

white sedan who was not breathing. The white sedan was 

positioned approximately four to five feet from the curb and the 

passenger[-]side window was broken. As Mr. Martin approached 

the vehicle, he observed that the engine was still running, the car 

was in drive, though not moving, and was situated on the 

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1 75 Pa.C.S.A. § 3802(d)(1)(ii); 75 Pa.C.S.A. § 3802(d)(2).
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roadway. Mr. Martin then shifted the car into park and turned the 

car off.

Mr. Martin observed that [Hoffer] was pale, cyanotic, diaphoretic, 

wasn’t breathing and had a faint heartbeat. Mr. Martin indicated 

that his experience informed him that symptoms exhibited by 

[Hoffer] were consistent with someone under the influence of 

opiates.

Mr. Martin was able to remove [Hoffer] from the vehicle and place 

[him] on a stretcher in the ambulance [where] Mr. Martin’s 

partner began manual breathing on [Hoffer] and Mr. Martin 

administered Narcan in order to allow [Hoffer] to begin breathing.

After reviving [Hoffer], Mr. Martin asked [Hoffer] standard 

questions, including what he had ingested, and [Hoffer] 

answer[ed] that he had ingested heroin. Mr. Martin then 

transported [Hoffer] to the hospital.

On cross-examination, Mr. Martin could not remember whether 

the vehicle was a push-start or key ignition and admitted that he 

did not include the fact that he placed the car in park and turned 

off the engine in his report. Furthermore, Mr. Martin stated that 

he did not take possession of any key or fob from [Hoffer] and he 

did not recall even seeing a key or fob on [Hoffer’s] person. 

. . .

The paramedics then transported [Hoffer] to Good Samaritan 

Hospital where Officer Bowman requested consent from [Hoffer] 

to administer a blood draw, to which [Hoffer] consented. The

parties stipulated that the blood draw was consensual and was 

conducted in compliance with normal hospital procedures. The 

parties further stipulated that the blood samples were analyzed at 

MEDTOX Laboratories by Dr. Karla Walker and that Dr. Walker 

prepared a report detailing her determinations based on the 

sample testing. Officer Bowman then testified that morphine and 

amphetamine, both Schedule II controlled substances under 

Pennsylvania law, were found in the samples of [Hoffer’s] blood.

On cross-examination, Officer Bowman stated that he could not 

recall whether the vehicle[’]s engine was running when he arrived 

because he was focused on [Hoffer]. Officer Bowman further 

stated that no key or fob was recovered from the scene or on 
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[Hoffer’s] person and that [Hoffer] never admitted to driving the 

vehicle. 

[Hoffer] called Casey Bossler, [Hoffer’s] girlfriend and the owner 

of the vehicle in which [Hoffer] was found, as a witness. Ms. 

Bossler testified that on December 14, 2016[,] she had driven the 

vehicle, with [Hoffer] as a passenger, to the 300 block of 4th 

Street and parked the vehicle as it was found. Ms. Bossler stated 

that she was in a hurry because she was supposed to meet a friend 

in order to attend her children’s Christmas show. [Hoffer] needed 

to go somewhere else, and was making Ms. Bossler anxious so 

she decided to quickly park the vehicle on the street and have her 

friend pick her up where she parked. Ms. Bossler believed that 

she turned the car off when she left. Ms. Bossler left [Hoffer] at 

the vehicle and claimed that he did not have a key to the car.

Ms. Bossler stated that the vehicle is a push-start ignition in which 

a driver would need to have the key fob in order to start the 

vehicle, but [Hoffer] did not have the fob. Ms. Bossler asserted 

that she retained one of the fobs and the other was at her parents’ 

house. Ms. Bossler arrived back at the scene later to find that her 

vehicle was being towed, but was able to retrieve the vehicle 

because she had the fob. 

[Hoffer] next called Joseph Blauch as a witness. Mr. Blauch 

testified that on December 14, 2016, he was walking down the 

street and found an individual slumped over in a white sedan. Mr. 

Blauch called 9-1-1 and then attempted to gain access to the 

vehicle, eventually breaking the passenger[-]side window. Mr. 

Blauch could not remember how the vehicle was situated on the 

street and he did not take notice as to whether there were any 

keys or a fob in the vehicle, but stated that the engine was not 

running when he arrived. Mr. Blauch admitted that he knew 

[Hoffer] from high school, but denied being friends with [Hoffer]. 

Trial Court Opinion, 1/4/19, at 1–5 (citations to record omitted).

At the conclusion of the trial, the jury found Hoffer guilty on both DUI 

counts. On September 19, 2018, the court sentenced Hoffer to 7 days to 6

months’ imprisonment. On October 1, 2018, Hoffer timely filed post-sentence 
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motions.

2 The court denied the motions and Hoffer timely flied his notice of 

appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal.

Hoffer raises the following issues for our review:

(1) The Commonwealth failed to present sufficient evidence at 

trial to prove beyond a reasonable doubt that Hoffer was in 

actual physical control of the operation of a motor vehicle 

while under the influence of a controlled substance[.]

(2) The guilty verdicts were against the weight of the evidence.

Brief of Appellant, at 4.

Hoffer first challenges the sufficiency of the evidence in proving that he 

was in actual physical control of the vehicle while under the influence of a 

controlled substance. 

We review Hoffer’s sufficiency of the evidence claim under the following 

standard:

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 

[re-]weigh the evidence and substitute our judgment for [that of] 

the fact-finder. In addition, we note that the facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. Any doubts regarding

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 

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2 We note that Hoffer preserved the issue that the verdict was against the 

weight of the evidence in his post-sentence motion. See Pa.R.Crim.P. 

607(A)(3).
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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. Giordano, 121 A.3d 988, 1002-1003 (Pa. Super. 2015).

The jury convicted Hoffer under two different subsections of section 

3802, driving under the influence—controlled substance. 75 Pa.C.S.A. §§ 

3802(d)(1)(ii); 3802(d)(2). “An individual may not drive, operate or be in 

actual physical control of the movement of a vehicle” if there is any amount 

of a Schedule II controlled substance in the individual’s bloodstream that has 

not been medically prescribed to the individual. 75 Pa.C.S.A. § 3802(d)(1)(ii). 

Further, an individual may not drive, operate, or be in physical control of a 

vehicle when “[t]he individual is under the influence of 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 vehicle.” 75 Pa.C.S.A. § 

3802(d)(2).

An individual is in “actual physical control” of a vehicle when he or she 

is in “control of the movements of either the machinery of the motor vehicle 

or of the management of the vehicle itself, without a requirement that the 

entire vehicle be in motion.” Commonwealth v. Crum, 523 A.2d 799, 801–

802 (Pa. Super. 1987). To prove that an individual was in actual physical 

control of the vehicle, a combination of evidence is considered, including: 
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whether the motor was running, the vehicle’s location, and any other 

additional evidence to demonstrate the individual had driven the car. 

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

location of a vehicle is a key factor in finding control, and a suspect location 

of a vehicle supports an inference that the vehicle was driven. 

Commonwealth v. Brotherson, 888 A.2d 901, 905 (Pa. Super. 2005); see 

also Crum, 523 A.2d at 800 (finding actual physical control when car was 

found parked along side of road with headlights on and motor running); see 

also Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa. Super. 1991) 

(finding actual physical control when driver was found parked in ally with 

engine running).

Hoffer argues that the Commonwealth failed to prove that the engine

was running, and, thus, that he was in actual physical control of the vehicle.

We disagree. Hoffer bases his argument on the testimony of his girlfriend,

Bossler, who stated that she parked the car and took the key fob. As a result, 

Hoffer would have been unable to start the car. N.T. Trial, 7/6/18, at 29. 

Hoffer also points to the testimony of Blauch, a high school acquaintance, who 

testified that when he approached the car, the engine was off. Id. at 38-40. 

The Commonwealth, however, presented the testimony of Martin, a

paramedic, who stated that when he responded to the scene, he found Hoffer 

in the car, unconscious, with the engine still running, and the car in drive. Id.

at 5-8. Martin explained that he had to shift the car into park and turn the 

engine off. Id. at 7, 13-14. Further, the Commonwealth presented 
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photographs that showed the car situated on the roadway, four to five feet off 

the curb and parallel to the cross-street of the intersection. Id. at 11.

Here, the jury, as fact-finder, assessed the credibility of all witnesses 

and considered the evidence produced at trial. The jury was free to believe 

all, part or none of the evidence. Giordano, supra at 1003. Martin clearly 

and consistently stated that when he came upon the vehicle, the engine was

on, the car was in drive, and Hoffer’s foot was on the brake. N.T. Trial, 7/6/18, 

at 5-8. The photographic evidence also showed that the car was in a suspect 

position on the road, which supports the inference that Hoffer was driving and,

further, demonstrates that he had actual physical control of the vehicle. Id. 

at 11; see Brotherson, supra at 905. Finally, both parties stipulated that 

Hoffer’s blood contained morphine3 and amphetamine,4 a combination of 

Schedule II drugs, which impaired Hoffer’s ability to be in actual physical 

control of the vehicle. 75 Pa.C.S.A. § 3802(d)(1)(ii); 75 Pa.C.S.A. § 

3802(d)(2).

Based on the foregoing evidence, as well as the reasonable inferences 

derived therefrom, the jury could have found Hoffer guilty on both counts of 

driving under the influence of a controlled substance. Giordano, supra. 

Accordingly, he is entitled to no relief. 

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3 35 P.S. § 780-104(2)(i)(1).

4 35 P.S. § 780-104(2)(iii)(1).
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Hoffer next claims that the verdict was contrary to the weight of the 

evidence. 

We evaluate Hoffer’s weight claim under the following standard:

A claim alleging the verdict was against the weight of the evidence 

is addressed to the discretion of the trial court. Accordingly, an 

appellate court reviews the exercise of the trial court’s discretion; 

it does not answer for itself whether the verdict was against the 

weight of the evidence. It is well[-]settled that the jury is free to 

believe all, part, or none of the evidence and to determine the 

credibility of the evidence, and a new trial based on a weight of 

the evidence claim is only warranted where the jury’s verdict is so 

contrary to the evidence that it shocks one’s sense of justice. In 

determining whether this standard has been met, appellate review 

is limited to whether the trial judge’s discretion was properly 

exercised, and relief will only be granted where the facts and 

inferences of record disclose a palpable abuse of discretion. 

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations 

and internal quotation marks omitted). 

Here, Hoffer contends the jury’s verdict was against the weight of the 

evidence because “[t]he [c]ourt should have given less weight to Martin’s 

testimony because Martin could not recall how he turned off the car engine, 

and never recovered a key or key fob which would have been needed to turn 

off the engine.” Appellant’s Brief, at 12. Hoffer also claims that the court 

“should have given more weight to the testimony of Bossler[,] who testified 

that Hoffer never had a key to the car[,] and Blauch[,] who testified that the 

car’s engine was not running when he found Hoffer passed out in the white 

sedan.” Id.
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We reiterate that it is within the sole discretion of the jury to assess the 

credibility of the evidence at trial. Here, the Commonwealth presented the 

testimony of Martin and Officer Bowman, along with photographs of the scene 

to corroborate their testimony. The jury resolved the conflicts in testimony, 

and found that the Commonwealth’s witnesses were more credible than those 

of the defense. The jury was free to believe all, part, or none of the evidence; 

thus, we find no palpable abuse of discretion. Houser, supra; see also 

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (“Appellate review 

of a weight claim is a review of the exercise of discretion, not of the underlying 

question of whether the verdict is against the weight of the evidence.”). The 

trial court did not abuse its discretion in finding the verdict was not against 

the weight of the evidence. Houser, supra.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/29/2019