J-S73029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ANGELA THOMAS

Appellant No. 418 WDA 2016

Appeal from the Judgment of Sentence March 15, 2016

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0000928-2015

BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J. 

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 22, 2016

Angela Thomas appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Fayette County, following her conviction of 

Driving Under the Influence of Alcohol (“DUI”),1 Driving While BAC is .02% 

or Greater while License Suspended,2 Disregarding a Traffic Lane,3and 

Careless Driving.4 Finding no error, we affirm. 

The trial court set forth the factual history as follows: 

[D]uring the early morning hours of April 12, 2105 in North 

Union Township, Fayette County, Pennsylvania[,] Pennsylvania 

____________________________________________

1 75 Pa.C.S. § 3802(a)(1).

2 75 Pa.C.S. § 1543(b)(1.1)(i).

3 75 Pa.C.S. § 3309(1).

4 75 Pa.C.S. § 3714(A).
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State Police were dispatched to the area of Bute Road and Oliver 

Road for a report of a vehicle crash. When police arrived, they 

observed a silver Chrysler 300 with a vanity plate that read “Ms. 

Thomas” to have hit a tractor trailer truck that was parked off 

the roadway. The operator of the Chrysler was not at the scene, 

which prompted police to canvass the area. Troopers Robert 

Schmid and Jason Ashton observed a black female, later 

identified as [Thomas], staggering northbound on Bute Road 

approximately one-half mile from where the crash occurred. The 

area was described as having “minimal to [no] automobile 

traffic” and “zero” pedestrian traffic at that time of day. When 

Trooper Schmid made contact with [Thomas], she refused to 

answer any questions regarding her whereabouts. Furthermore, 

Trooper Schmid observed [Thomas] to have glassy, bloodshot 

eyes, staggered gait, and the odor of an alcoholic beverage 

emanating from her. At that point, she was placed into custody, 

read her Miranda[

5

] rights, and transported to the crash scene. 

While inside the police cruiser, [Thomas] initiated a conversation 

with Trooper Ashton. She asked what was presently happening, 

and he explained that they were trying to ascertain who the 

driver of the vehicle was. He then asked her if she was driving 

the vehicle, to which she answered in the affirmative. Upon 

learning that information, Trooper Michael Carcella, the affiant, 

took [Thomas] into his custody while he continued investigating 

the crash. He then asked [Thomas] to perform a series of field 

sobriety tests, include the horizontal gaze nystagmus (“HGN”) 

and walk and turn tests. [Thomas’] performance was 

unsuccessful, and she refused to perform any further tests. 

Based on her unsuccessful completion of the field sobriety tests, 

she was then transported to Uniontown Hospital for a blood 

draw. She was read the O’Connell[

6

] warnings and began 

____________________________________________

5

 Miranda v. Arizona, 384 U.S. 436 (1966). 

6 The court refers to the refusal warnings as “O’Connell warnings.” See

Dep’t of Transp., Bureau of Traffic Safety v. O’Connell Department of 

Transportation v. O'Connell, 555 A.2d 873 (Pa. 1989). The O'Connell

warnings are a statement of an operator’s rights pursuant to section 1547 of 

the Vehicle Code, as amended, 75 Pa.C.S. § 1547, commonly known as the 

Implied Consent Law. In O’Connell, the Pennsylvania Supreme Court 

discussed the burdens of proof applicable in license suspension cases as 

follows:

(Footnote Continued Next Page)
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arguing with Trooper Carcella and hospital staff that she had a 

right to a breath, not blood, test. Trooper Carcella explained to 

[Thomas] that there were no . . . certified breathalyzer operators 

available, and a blood test was her sole option. Despite being 

warned of the penalty for refusing to submit to a blood sample, 

[Thomas] continued engaging in “belligerent behavior” and 

never submitted to the blood draw. As a result of this incident, 

the aforementioned charges were filed. 

Trial Court Opinion, 3/15/16, at 2-4. 

A jury convicted Thomas, and the court sentenced her to three years 

of County Intermediate Punishment, the first twelve months to be spent 

under house arrest with electronic monitoring. This appeal followed. 

Thomas raises the following issues for our review: 

1. Whether the evidence presented at trial sufficiently 

established that [Thomas] drove, operated or was in 

actual physical control of the movement of the vehicle 

while intoxicated on April 12, 2015;

2. Whether the evidence presented at trial was sufficient 

to establish that [Thomas] refused to submit to 

chemical testing to determine amount of alcohol or 

controlled substance on the date of the incident; 

3. Did the trial court err in denying [Thomas’] motion for 

mistrial following the trooper’s testimony [Thomas] 

(Footnote Continued) _______________________

[U]nder Section 1547(b) of the Vehicle Code, the Commonwealth 

must establish that the driver involved: (1) was arrested for 

driving under the influence of alcohol; (2) was asked to submit 

to a breathalyzer test; (3) refused to do so; and (4) was 

specifically warned that a refusal would result in the revocation 

of his driver’s license.

Once the Commonwealth meets its burden, it is the driver’s responsibility to 

prove that he or she was not capable of making a knowing and conscious 

refusal to take the test. Id. at 876.
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refused to speak with the troopers following the 

incident, in violation of [Thomas’] Fifth and Sixth 

Amendment rights.

Appellant’s Brief, at 7. 

First, Thomas challenges the sufficiency of the evidence. She contends 

the Commonwealth failed to prove that she “drove, operated or was in 

actual physical control” of the vehicle while intoxicated on the date of the 

incident, a necessary element of the offense of DUI. 75 Pa.C.S. § 

3802(a)(1).7 

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 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 

____________________________________________

7 § 3802. Driving under influence of alcohol or controlled substance

(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.

75 Pa.C.S. § 3802(a)(1) (emphasis added).
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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. Devine, 26 A.3d 1139, 1145 (Pa. Super. 2011).

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), 

quoting Commonwealth v. Wilson, 660 A.2d 105, 107 (Pa Super. 1995). 

The Johnson court clarified that “[u]nder Pennsylvania law, an eyewitness 

is not required to establish that a defendant was driving, operating, or was 

in actual physical control of a motor vehicle. The Commonwealth can 

establish through wholly circumstantial evidence that a defendant was 

driving, operating or in actual physical control of a motor vehicle.” 

Johnson, 833 A.2d at 263. 

Here, three Pennsylvania State Troopers testified that a silver Chrysler 

300, with the vanity plate, “Ms. Thomas,” had struck a parked tractor-trailer. 

After determining the operator had fled the scene, Trooper Schmid 

canvassed the area, observed a female one-half mile from the scene, later 

determined to be Thomas, who had bloodshot eyes and smelled of alcohol. 

N.T. Trial, 3/9/16, at 30-33, 42-53. Thomas was transported back to the 

scene, placed into custody, and given Miranda warnings. Id. at 35. 
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Thereafter, Thomas admitted to Trooper Ashton that she was the operator of 

the Chrysler. Id. at 46. 

Viewing the evidence in the light most favorable to the Commonwealth 

as verdict winner, the evidence, both direct and circumstantial, was 

sufficient to establish that Thomas “drove, operated, or was in actual 

physical control” of the vehicle. See Commonwealth v. Woodruff, 668 

A.2d 1158 (Pa. Super. 1995) (determination of actual physical control of 

vehicle is based upon totality of circumstances, including location of vehicle, 

whether engine was running and whether there was additional evidence 

indicating defendant had driven vehicle prior to arrival of the police.). 

Accordingly, Thomas’ challenge to the sufficiency of the evidence to sustain 

her conviction for DUI is meritless. 

Next, Thomas argues the evidence was insufficient to establish that 

she refused to submit to chemical testing.8 This claim is also meritless.

The evidence established that after being transported to Uniontown 

Hospital for a blood draw, Thomas became belligerent and argumentative. 

Trooper Carcella testified as follows:

____________________________________________

8 See 75 Pa.C.S. § 1547(b) (suspension for refusal) (“(1) If any person 

placed under arrest for a violation of section 3802 is requested to submit to 

chemical testing and refuses to do so, the testing shall not be conducted but 

upon notice by the police officer, the department shall suspend the operating 

privilege of the person as follows: (i) Except as set forth in subparagraph 

(ii), for a period of 12 months. (ii) For a period of 18 months if any of the 

following apply: (A) The person's operating privileges have previously been 

suspended under this subsection.”). See also 75 Pa.C.S. § 3804(c).
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Q: Did you advise her why she was going to Uniontown 

Hospital? 

A: Yes, I did. I explained to her that based on my 

observations from the [field] test, I felt she was under the 

influence of alcohol, so we took her to Uniontown Hospital 

where I requested her to submit to a blood draw.

 * * * * 

Q: You mentioned about the warnings, what warnings are 

you talking about?

A: They are the O’Connell Warnings, commonly referred to 

as the Implied Consent Warnings. . . . when you are 

arrested for D.U.I., it is a form that we have to read to you 

to explain to you that if you do not submit to chemical 

testing, if you refuse to . . . have blood drawn or to submit 

to a breath test . . . you are subject to more severe 

penalties. . . . It would be the same if you were convicted 

under driving at the highest rate of alcohol. It includes, I 

think a maximum fine of ten thousand dollars and a year 

suspension on your license, plus possible incarceration. 

 * * * *

Q: What happened next after you gave her these 

warnings, Tooper?

A: Ms. Thomas became argumentative with myself and 

Corporal Despot . . . she was yelling at us. She was 

belligerent with myself and with hospital staff and she said 

that she had the right to submit to a breath test. . . I 

asked her several more times, I said that the test – we 

don’t have anyone certified to run the intoxalyzer machine. 

The opportunity being given to you right now is the blood 

draw, so if you are not going to submit to the blood draw, 

it is going to be a refusal.

Q: You gave her that warning?

A: Absolutely, sir. . . . She continued to argue and I 

argued with her for probably three or four minutes, and 

then I figured it was a refusal. . . . She was yelling. I 

mean, she was hostile. I mean, she was upset obviously, 

and she felt that she had the right to a breath test and I 

explained to her that we are here to do a blood draw.
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Q: And ultimately you determined that she refused the 

blood draw?

A: Yes, sir.

N.T. Trial, 3/9/16, at 60-62. 

Thomas argues that the evidence was insufficient to establish that she 

refused to submit to chemical testing because “three (3) to four (4) minutes 

is an insufficient amount of time to expect a motorist, especially one who 

may be under the influence of alcohol, to comprehend the implied consent 

law and decide whether to comply or not.” Appellant’s Brief, at 14. We 

disagree. 

Thomas provides no legal support for her argument that there is a 

time requirement for determining consent to chemical testing. The question 

of whether a licensee refuses to submit to a chemical test is a legal one, 

based on the facts found by the trial court. See Gregro v. Com., Dept. of 

Transp., Bureau of Driver Licensing, 987 A.2d 1264, 1267 (Pa. Cmwlth. 

2010). What amounts to a “refusal” for purposes of section 1547(b)(1) is not 

defined under the statute. However, in construing section 1547(b)(1), the 

Pennsylvania Supreme Court has stated that “any response from a licensee 

that is anything less than an `unqualified, unequivocal assent’ to submit to 

testing constitutes a refusal, subjecting the licensee to the one-year 

suspension.” Todd v. Com., Dept. of Transp., Bureau of Driver 

Licensing, 723 A.2d 655, 658 (Pa. 1999) (quoting Com., Dept. of Transp. 

v. Renwick, 669 A.2d 934, 939 (Pa. 1996)). See Dep't of Transp. v. 
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Gross, 605 A.2d 433 (Pa. Cmwlth. 1991) (failure to supply sufficient breath 

sample is conduct tantamount to refusal to submit to chemical testing); 

Murray v. Commonwealth, 598 A.2d 1356 (Pa. Cmwlth. 1991) (anything 

short of unqualified, unequivocal assent to request to submit to chemical 

testing is refusal); Colgan v. Com., Dept. of Trans., Bureau of Driver 

Licensing, 561 A.2d 1341 (Pa. Cmwlth. 1989) (motorist’s insistence that 

blood sample be taken from his little toe was equal to refusal to submit to 

chemical testing). 

Here, the evidence established that Thomas’ conduct was inconsistent 

with “unequivocal assent.” After our review of the record, we are satisfied 

with the trial court’s finding that Thomas refused to submit to chemical 

testing. Com. Dept. of Transp., Bureau of Driver Licensing v. Ingram, 

648 A.2d 285 (Pa. 1994). 

In her final issue, Thomas claims that the trial court erred in denying 

her motion for mistrial after Trooper Schmid testified that she initially 

refused to answer questions regarding her whereabouts that evening. 

Thomas argues Trooper Schmid’s testimony violated her right to remain 

silent and her right against self-incrimination. 

We review the denial of a motion for mistrial for an abuse of 

discretion.

[T]he trial court is vested with discretion to grant a mistrial 

whenever the alleged prejudicial event may reasonably be said 

to deprive the defendant of a fair and impartial trial. In making 

its determination, the court must discern whether misconduct or 

prejudicial error actually occurred, and if so, . . . assess the 
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degree of any resulting prejudice. Our review of the resulting 

order is constrained to determining whether the court abused its 

discretion.

Commonwealth v. Hogentogler, 53 A.3d 866, 877–78 (Pa. Super. 2012) 

(citations omitted). “The remedy of a mistrial is an extreme remedy required 

‘only when an incident is of such a nature that its unavoidable effect is to 

deprive the appellant of a fair and impartial tribunal.’” Id. at 878 (citations 

omitted). 

Here, Thomas refers to Trooper Schmid’s testimony recounting the 

accident investigation:

Q: [W]hen you encountered the defendant, were you 

already aware that a crash had occurred up the road?

A: We were aware that there was a crash right up the 

road.

Q: Now, where on Bute Road did you encounter the 

defendant in proximity to the crash site?

A: It was approximately a half mile away in the area of 

Orchard Avenue on Bute Road is where we encountered 

her. . . she was by herself. . . . She was walking – she 

had a purse on over her shoulder, and she was noticeably 

staggering down the roadway. 

Q: What did you do next.

A: That’s when we pulled over directly in front of her. We 

noticed her from a distance, so we crossed over into the 

southbound lanes, pulled directly in front of her and 

activated the emergency lights and we put a spotlight on 

her, and then that’s when I exited my vehicle to make 

contact with her. . . . When I made contact with her, 

she made no statements. She wouldn’t speak. I 

questioned her where she was coming from, how 

she got here, what was going on. There was no 

response the entire time I spoke with her. 
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N.T. Trial, 3/9/16, at 32-33 (emphasis added).9 

Contrary to Thomas’ argument, Trooper Schmid’s testimony was not 

aimed at highlighting her pre-arrest silence; it merely relayed his 

investigation of the crash. Observing a woman one-half mile from the scene 

of an accident, at an hour where there is no pedestrian traffic in the area, 

Trooper Schmid was obligated to question her. The statement was not 

utilized to provide substantive evidence of Thomas’ guilt, but instead was 

recounted in the context of Trooper Schmid’s initial interaction with her. We 

agree with the trial court that this was a passing reference and that there 

was no misconduct or prejudicial error. Trooper Schmid’s statement did not 

deprive Thomas of a fair and impartial trial. See Commonwealth v. 

Adams, 104 A.3d 511, 517 (Pa 2014) (“mere reference to a defendant’s 

silence does not necessarily impinge constitutional rights when guilt is not 

implied”). We find no abuse of discretion. Hogentogler, supra.

Judgment of sentence affirmed.

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9 At this point in the testimony, defense counsel moved for a mistrial. See

Pa.R.Crim.P. 605(B) (“When an event prejudicial to the defendant occurs 

during trial only the defendant may move for a mistrial; the motion shall be 

made when the event is disclosed.”); see also Commonwealth v. 

McAndrews, 430 A.2d 1165, 1167 (Pa. 1981) (failure to a timely request 

for mistrial waives issue).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016