J-A01027-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

MONICA PAOLINI,

Appellant No. 3068 EDA 2016

Appeal from the Judgment of Sentence September 9, 2016

in the Court of Common Pleas of Philadelphia County

Criminal Division at No.: CP-51-CR-0004991-2016

BEFORE: LAZARUS, J., OTT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MARCH 22, 2018

Appellant, Monica Paolini, appeals from the judgment of sentence 

imposed on September 9, 2016, following her non-jury trial conviction of 

driving under the influence (DUI).1 Specifically, she claims that the evidence 

was insufficient to support the trial court’s verdict. We affirm.

We take the factual and procedural history in this matter from our 

review of the certified record and the trial court’s June 23, 2017 opinion. On 

May 20, 2016, the Philadelphia Municipal Court convicted Appellant of DUI and 

sentenced her to six months of probation. Appellant appealed to the Court of 

Common Pleas, which conducted a non-jury trial on September 9, 2016. At 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(a)(1).
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trial, the Commonwealth presented the testimony of the arresting officers, 

Philadelphia Police Officers Vincent Labrice and Cindy Yue. 

On January 20, 2016, at 12:45 a.m., Officers Labrice and Yue

approached Appellant’s vehicle, which was parked with the headlights on and 

the motor running in the parking lot of a closed CVS store located across the 

street from the Brickhouse Tavern. (See N.T. Trial, 9/09/16, at 7-8). When 

they tried to speak with Appellant, she was distracted looking for her cell 

phone and not paying attention to the officers. (See id. at 8). Officers Labrice 

and Yue explained that there was a strong odor of alcohol coming out of the 

vehicle, and that Appellant was wobbling and unable to stand when she got 

out of the car. (See id. at 8-9, 14, 16-17). Appellant admitted to the officers 

that she had consumed a few drinks at the Brickhouse Tavern across the 

street. (See id. at 9, 15). Both officers testified that they believed that 

Appellant was under the influence of alcohol. (See id. at 10, 15). Officer Yue 

testified that she did not believe that Appellant could safely operate a motor 

vehicle. (See id. at 15). On cross-examination, Officers Labrice and Yue both 

conceded that they has no training in DUIs, conducted no field sobriety tests,

and that they never saw Appellant’s car move. (See id. at 11, 16). 

The trial court found the testimony of Officers Labrice and Yue to be 

credible. (See id. at 23). It concluded that 

the Commonwealth has sustained its burden with regard to [§

3802(a)(1)], DUI, general impairment. The facts are clear when 

the police officers came to the scene, the car was already running. 

[Appellant] was—appeared to be incoherent, unable to stand, 

smelled of alcohol, was clearly observed by the officers. The
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officers in their joint assessment felt that [Appellant] was unable 

to—incapable of safely driving the vehicle.

(Id.). The trial court then found Appellant guilty of DUI and sentenced her to 

six months of probation. (See id. at 24-25). This timely appeal followed.2

Appellant presents one question on appeal: “Whether the [trial court] 

committed an error of law when it found Appellant was in actual physical 

control of a vehicle, and whether the evidence was sufficient to find Appellant 

guilty of violating 75 Pa.C[.]S[.]A[.] § 3802(a)(1)[?]” (Appellant’s Brief, at 

6).

Appellant challenges the sufficiency of the evidence to support her 

conviction. (See id. at 13-17). Specifically, she claims that Commonwealth 

failed to prove that she was in actual physical control of the vehicle. (See 

id.). We disagree.3

A challenge to the sufficiency of the evidence is a question 

of law, subject to plenary review. When reviewing a sufficiency of 

the evidence claim, the appellate court must review all of the 

evidence and all reasonable inferences drawn therefrom in the 

light most favorable to the Commonwealth, as the verdict winner. 

Evidence will be deemed sufficient to support the verdict when it 

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2 Pursuant to the trial court’s order, Appellant filed her concise statement of 

errors complained of on appeal on October 13, 2016. The trial court entered 

its opinion on June 23, 2017. See Pa.R.A.P. 1925.

3

In the argument portion of her brief, Appellant claims that the evidence was 

insufficient because there was no evidence of alcohol consumption that would 

have rendered her unfit to drive. (See Appellant’s Brief, at 17-18). Appellant 

did not include this issue in her statement of questions involved, nor is it fairly 

suggested thereby, thus it is waived. See Pa.R.A.P. 2116(a). Moreover, even 

if she had included it in her statement of questions, she did not develop this 

argument supported by citation to pertinent legal authority, thus it would be 

waived for that reason as well. See Pa.R.A.P. 2119(a).
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establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt.

The Commonwealth need not preclude every possibility of 

innocence or establish the defendant’s guilt to a mathematical 

certainty. Finally, the trier 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. Williams, 871 A.2d 254, 259 (Pa. Super. 2005) (citations 

and quotation marks omitted).

Appellant was convicted of violating section 3802(a)(1) of the vehicle 

code, which provides:

(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.A. § 3802(a)(1).

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. A determination of actual physical control of a 

vehicle is based upon the totality of the circumstances. The 

Commonwealth can establish through wholly circumstantial 

evidence that a defendant was driving, operating or in actual 

physical control of a motor vehicle.

Williams, supra at 259 (citations and quotation marks omitted).

In Williams, supra, this Court concluded that the Commonwealth 

proved that the appellant had actual physical control of his vehicle where 

police officers found him parked outside a restaurant, asleep in the driver’s 

seat with his head and hands resting on the wheel, with the engine running, 
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the headlights on, and the transmission in the park position. See id. at 258-

59. 

In Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), 

appeal denied, 29 A.3d 797 (Pa. 2011), this Court similarly found that the 

appellant had actual physical control of the vehicle. In Toland, the 

Commonwealth proved that the appellant was asleep in the driver’s seat of 

the vehicle with the motor running and headlights on, and there was an 

unopened six-pack of beer on the floor behind the driver’s seat. The 

appellant’s vehicle was parked on a public street in front of a store. The court 

concluded that although it was unclear where the appellant had been drinking, 

because he was not sitting in the parking lot of a bar, there was a reasonable 

inference based on circumstantial evidence that the appellant drove to that 

location. See Toland, supra at 1246-47. 

Here, the Commonwealth introduced evidence that Appellant was in a 

parked car, with the motor running and headlights on, outside of a closed CVS 

drugstore at 12:45 a.m. When they approached Appellant, who was sitting in 

her vehicle, she was intoxicated to the extent that she could neither focus on 

their questions to her, nor stand stably upon exiting the car. Appellant 

admitted to the officers that she had been drinking alcohol at the Brickhouse 

Tavern, located across the street from the CVS. (See N.T. Trial, 7-17).

Therefore, we conclude that viewing the evidence and all reasonable 

inferences therefrom in the light most favorable to the Commonwealth as 

verdict winner, there was sufficient evidence to prove that Appellant had 
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actual physical control of her vehicle after having consumed enough alcohol 

to render her incapable of safely doing so. See Williams, supra at 259. It 

is reasonable to infer, based on the circumstantial evidence, that Appellant 

was parked outside of a closed CVS store, and she drove her vehicle to the 

CVS after drinking alcohol at the Brickhouse Tavern.4 See Toland, supra at 

1246-47. 

Accordingly, we conclude that the evidence presented by the 

Commonwealth was sufficient to prove that Appellant was guilty of DUI. 

Appellant’s challenge to the sufficiency of the evidence does not merit relief. 

Judgment of sentence affirmed.

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4 We find Appellant’s reliance on Commonwealth v. Byers, 650 A.2d 468 

(Pa. Super. 1994), for the argument that she did not have actual physical 

control of the vehicle, and that the Commonwealth failed to show that she 

posed a danger to public safety, to be misplaced. (See Appellant’s Brief, at 

15-17). Our Supreme Court in Commonwealth v. Wolen, 685 A.2d 1384

(Pa. 1996) (plurality), criticized the Byers approach. Specifically the Wolen

Court observed that “a person’s threat to public safety is not a relevant 

consideration under the drunk driving statutes.” Wolen, supra at 1386 n.4; 

see also Toland, supra at 1246-47 (recognizing that Wolen called approach 

in Byers into question, and concluding that, at any rate, Byers was 

distinguishable where appellant was not parked in front of bar, but rather 

parked in front of store). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/18