J-S50005-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ASHLEY ESTHER LEISTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2717 EDA 2019

Appeal from the Judgment of Sentence Entered August 20, 2019

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0001257-2019

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 20, 2021

Appellant, Ashley Esther Leister (“Leister”), appeals from the judgment 

of sentence of an aggregate term of 72 hours to 6 months’ imprisonment, 

imposed after she was convicted of three counts of driving under the influence 

of a controlled substance.1 Appellant challenges the sufficiency of the 

evidence to sustain her convictions and the imposition of prosecution costs at 

sentencing. We affirm.

The trial court provided the following factual summary in its Pa.R.A.P. 

1925(a) opinion:

On November 24, 2018[,] at approximately 8:20 p.m., 

Leister was observed walking through Wawa, a convenience store, 

located at 145 West DeKalb Pike, Upper Merion, Montgomery 

County. Robert Dubuc, a manager at Wawa, testified that Leister 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. §§ 3802(d)(1)(ii), (d)(1)(iii), (d)(2). 
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appeared to be intoxicated while in the store. Mr. Dubuc testified 

that he saw her exit the store and approach the driver’s side of 

her car. Because she appeared to be intoxicated, Mr. Dubuc 

directed Leister towards the passenger door and into the 

passenger’s seat. Mr. Dubuc started her car, since it was cold 

outside. He then called [the] police. 

Officer Brian Manion of the Upper Merion Police Department 

responded to the scene. Upon arriving at the scene, Leister was 

in the front passenger seat. She appeared to have glassy and 

bloodshot eyes. When he spoke with Leister, she slurred her 

speech, nodding in and out during their conversation. She also 

seemed confused. The officer testified that based upon these 

observations[,] Leister appeared to be intoxicated. Leister told 

him that she drove to Wawa. 

Officer Manion asked Leister to step out of her car and to 

consent to a field sobriety test, which she did. The officer 

administered the one leg stand and balance test, the alphabet 

test, and the step-walk-and-turn test. Her performance on these 

tests coupled with her glassy eyes, slurred speech, confusion and 

falling asleep, indicated to the officer that her ability to safely drive 

her car was impaired and that she would be a danger on the road. 

Leister was taken into custody on suspicion of DUI. The officer 

read the DL-26 form to Leister, and then transported her to 

Suburban Community Hospital for a blood draw. 

A[ National Medical Services (“NMS”)] lab report was 

generated analyzing the blood draw. According to the NMS report, 

there was a presence of amphetamine, methamphetamine, 

Clonazepam, 7-Amino Clonazepam, and Oxycodone-Free in 

Leister’s blood. The report listed Oxycodone as a DEA Schedule 

II drug. 

Trial Court Opinion (“TCO”), 11/27/19, at 1-2 (citations to record omitted). 

Based on the evidence presented at a bench trial on August 20, 2019, 

Leister was found guilty of the aforementioned offenses and was sentenced to 

72 hours to 6 months’ imprisonment. She was also ordered to pay the costs 

of prosecution and a $1,000 fine. Leister filed a post-sentence motion, which 

was denied by the trial court on August 26, 2019. On September 13, 2019, 
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she filed a timely notice of appeal, followed by a timely, court-ordered 

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. 

Herein, Leister presents the following issues for our review:

1. Was there sufficient evidence to convict ... Leister of driving 

under the influence when she was seen leaving a store on foot, 

appearing intoxicated, and then rested in the passenger seat 

of a parked vehicle?

2. Did the sentencing court err in imposing costs and a 

supervision fee without taking into consideration ... Leister’s 

ability to pay?

Leister’s Brief at viii. 

First, Leister challenges the sufficiency of the evidence to support her 

convictions. The standard of review of a sufficiency claim is well-established:

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39, A.3d 996, 1001 (Pa. Super. 2011) (citations 

omitted). 

Specifically, Leister argues that “[o]bservations of an inebriated person 

returning to the passenger side of a parked car are insufficient evidence on 

which to sustain driving under the influence convictions.” Leister’s Brief at 5. 

She contends that the Commonwealth’s case is “based entirely on the 

supposition that [she] was inebriated when she first drove her car to Upper 

Merion and parked near ... Wawa[,]” but that all of its evidence pertains to 
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actions she took when she returned to the car. Id. She asserts that no 

evidence was presented regarding any of her activities prior to the moment 

she was seen exiting Wawa by foot. Id. After careful review, we conclude 

Leister is not entitled to relief on this claim. 

Section 3802 of the Vehicle Code provides, in relevant part:

(d) Controlled substance.—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;

(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). 

(2) The 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 the actual physical 

control of the movement of the vehicle. 

75 Pa.C.S. §§ 3802(d)(1) – (d)(2). 

Contrary to Leister’s claim, the Commonwealth asserts that it proved by 

the totality of the circumstances that Leister was in actual physical control of 

her vehicle while intoxicated. Commonwealth’s Brief at 6. According to the 

Commonwealth, the totality of the circumstances includes:

(1) [Leister’s] own statement that she drove to ... Wawa; (2) the 

location of the vehicle at ... Wawa; (3) multiple failed field sobriety 

tests; (4) the common sense inference that [Leister] could not 

have ingested the intoxicants while inside ... Wawa because the 
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degree of her inebriation was so severe as to fail three field 

sobriety tests; and (5) eyewitness testimony that [Leister] tried 

to get into the driver’s seat. 

Id. at 6-7 (citations to record omitted) (citing Commonwealth v. DiStefano, 

782 A.2d 574, 582 (Pa. Super. 2001) (stating, inter alia, that “[t]he 

Commonwealth may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial evidence”)). 

Moreover, Leister does not dispute that she drove her car to Wawa on 

the night of the incident. Rather, her argument is premised on her assertion 

that there is no evidence she was inebriated at the time she drove, operated, 

or was in control of the vehicle, because no timeframe was established for 

when she parked the vehicle at Wawa and/or when she ingested the 

substances that caused her inebriation. Id. at 8. As the Commonwealth 

points out, this Court has previously determined:

“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). “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.” Commonwealth v. 

Woodruff, ... 668 A.2d 1158, 1161 ([Pa. Super.] 1995). A 

determination of actual physical control of a vehicle is based upon 

the totality of the circumstances. [Commonwealth v.] 

Williams, [871 A.2d 254,] 259 [(Pa. Super. 2005)]. “The 

Commonwealth can establish through wholly circumstantial 

evidence that a defendant was driving, operating or in actual 

physical control of a motor vehicle.” Johnson, supra at 263. 
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Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super. 2010) (quoting 

Commonwealth v. Brotherson, 888 A.2d 901, 904-05 (Pa. Super. 2005)).

2

“In a majority of cases, the suspect location of the vehicle, which supports an 

inference that it was driven, is a key factor in a finding of actual control.” 

Brotherson, 888 A.2d at 905 (citing Commonwealth v. Bobotas, 588 A.2d 

518, 521 (Pa. Super. 1991) (finding actual physical control when the 

defendant was found parked in an alley, where he had pulled over on the way 

home, with the motor running); Commonwealth v. Crum, 523 A.2d 799, 

800 (Pa. Super. 1987) (finding actual physical control when the defendant was 

found sleeping in his parked car, along the side of the road, with the headlights 

on and the motor running)). 

Instantly, Leister declares that “[i]t is anyone’s guess as to when [she] 

parked her car and what she did between the moment she exited the car and 

the moment she was seen leaving Wawa on foot.” Leister’s Brief at 7. She 

argues that, “although a fact finder may draw inferences from circumstantial 

evidence, a verdict of guilt cannot be based on surmise or conjecture.” Id.

(citing Commonwealth v. Stanley, 309 A.2d 408 (Pa. 1973)). She also cites 

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2

In Brotherson, we analyzed the “actual physical control” component of 

Section 3731, the predecessor to Section 3802. The Pennsylvania Legislature 

repealed Section 3731 on September 30, 2003, effective February 1, 2004, 

and replaced it with Section 3802 of the Vehicle Code. Although levels of 

impairment were modified in the latter enactment, both statutes provide that 

a person may not “drive, operate or be in actual physical control of the 

movement of a vehicle” while under the influence. 
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to Commonwealth v. New, 47 A.2d 450 (Pa. 1946), in which the Court 

stated:

When two equally reasonable and mutually inconsistent inferences 

can be drawn from the same set of circumstances, a jury must not 

be permitted to guess which inference it will adopt, especially 

when one of the two guesses may result in depriving [the] 

defendant of his life or his liberty. When a party on whom rests 

the burden of proof in either a criminal or a civil case, offers 

evidence consistent with two opposing propositions, he proves 

neither. 

Leister’s Brief at 7 (quoting New, 47 A.2d at 468; emphasis added). Relying 

on New, Leister poses that the possibility she parked her car and immediately 

went into Wawa, leaving shortly thereafter, “sits in equipoise with the 

possibility that she parked and then engaged in other activities during a 

passage of time before she was seen leaving ... Wawa.” Id. at 8-9. We remain

unconvinced that these two scenarios are equally reasonable. 

As the trial court opined, “people who drive to Wawa typically purchase 

something and then drive away. It is not a final destination. It is not a location 

where amphetamine, clonazepam, 7-Amino Clonazepam, and Oxycodone are 

purchased over the counter and then used in public.” TCO at 5. Given that 

Leister admitted she drove to Wawa and that she was seen “heavily 

intoxicated” inside Wawa, suggesting that she had ingested the various 

substances in her system with sufficient time for them to take effect, it is 

reasonably inferred that Leister had driven to Wawa while under the influence 

of the controlled substances. See Toland, 995 A.2d at 1246 (where the 

defendant, as the sole occupant of a vehicle, was found asleep in the driver’s 
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seat with the engine running, while parked in the lot of a store that was not 

known to sell alcoholic beverages, and appeared visibly intoxicated to the 

officer after he was awakened, we determined that “a reasonable inference 

could be made that [the defendant] drove to that location[,]” and concluded 

that the evidence, while circumstantial, was sufficient for the fact-finder to 

conclude that the defendant was “in actual physical control of the movement 

of the motor vehicle” in support of his DUI conviction). See also 

Commonwealth v. Saunders, 691 A.2d 946, 950 (Pa. Super. 1997), 

abrogated on other grounds, Commonwealth v. Dantzler, 135 A.3d 1109 

(Pa. Super. 2016) (determining that the Commonwealth presented sufficient 

evidence to support an inference that the defendant drove his car while 

intoxicated where the defendant was found asleep in his car with the motor 

running, parked in front of a store that did not sell alcoholic beverages, and 

the defense stipulated that the defendant was intoxicated at the time the 

officer removed him from the car). 

After reviewing the evidence presented in this case, the trial court 

determined, 

the evidence showed that Leister[,] who was seen heavily 

intoxicated in the convenience store, had driven to Wawa in her 

car intoxicated. It was clearly established that she drove herself 

to Wawa in her car. She was seen intoxicated in Wawa. She 

drove nowhere else. The observations of the responding officer 

and the blood draw results also showed that she was heavily 

intoxicated by various substances.... This [c]ourt as fact-finder 

considered the totality of the direct evidence and circumstantial 

evidence presented, and common sense interferences [sic] from 
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this evidence; and properly inferred that Leister was only at ... 

Wawa for a short period of time after driving there while impaired. 

TCO at 5. We discern no abuse of discretion or error of law by the trial court. 

Next, Leister claims the trial court erred in ordering her to pay costs 

without first considering her ability to pay, in violation of Pa.R.Crim.P. 706(C). 

Leister’s Brief at 9. This issue implicates the interpretation of the Rules of 

Criminal Procedure, which presents a question of law. Therefore, our standard 

of review is de novo, and our scope of review is plenary. See 

Commonwealth v. Dowling, 959 A.2d 910, 913 (Pa. 2008). 

Leister states that she was “wrongly ordered to pay the costs of 

prosecution and supervision fees as part of her sentence.” Leister’s Brief at 

9. She argues that the sentencing court should have considered her ability to 

pay before imposing such costs, but that it failed to inquire about her financial 

situation. Id. at 10.3 In support of her argument, Leister cites to Pa.R.Crim.P.

706(C), which provides that the court, “in determining the amount and 

method of payment of a fine or costs shall, insofar as is just and practicable, 

consider the burden upon the defendant by reason of the defendant’s financial 

means....” Id. at 9 (quoting Rule 706(C)) (emphasis added). Leister asserts 

that this provision applies at sentencing. Id. (citing Commonwealth v. 

Martin, 335 A.2d 424 (Pa. Super. 1975) (en banc) (invalidating the imposition 

of a fine where the trial court did not determine the ability to pay under Rule 

706 (then Rule 1407))). Because the sentencing court did not make an ability-

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3 “Leister is indigent and currently receives the services of the public 

defender.” Id. at 13. 
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to-pay determination in this matter, Leister concludes that the assignment of 

costs was an illegal sentence and should be vacated. Id. at 14. 

Contrarily, the trial court opined: 

There is no requirement in Pennsylvania that a trial court consider 

a criminal defendant’s ability to pay the costs of prosecution 

and/or fees attendant to that prosecution. Commonwealth v. 

Childs, 63 A.3d 323, 326-27 (Pa. Super. 2013). While Rule 706 

“permits a defendant to demonstrate financial inability either after 

a default hearing or when costs are initially ordered to be paid in 

installments,” the Rule only requires such a hearing prior to any 

order directing incarceration for failure to pay the ordered costs. 

Commonwealth v. Hernandez, 917 A.2d 332, 337 (Pa. Super. 

2007) (emphasis added); see also[] Childs, 63 A.3d at 325-26. 

Therefore, it was not required that this [c]ourt make a finding that 

Leister had the ability to pay costs before their imposition. 

TCO at 7-8 (emphasis in original). 

Leister attacks the trial court’s ruling, arguing that Hernandez and 

Childs wrongly determined that Rule 706 does not apply at sentencing, 

ignoring the en banc precedent of Martin, as well as the plain text of Rule 

706(C). Leister’s Brief at 10. The Commonwealth argues, however, that 

Leister’s reliance on Martin is misplaced. Commonwealth’s Brief at 18. The 

Commonwealth asserts that Martin is distinguishable from this matter, 

primarily because Martin focused on the imposition of fines, not mandatory 

costs. Id. at 19. “Because Martin did not address the issue of costs, it should 

not be read to extend to costs. Accordingly, the trial court did not err when it 

imposed costs without first ascertaining [Leister’s] ability to pay.” Id. We 

agree with the Commonwealth. 
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In fact, this very issue of the legality of imposition of mandatory costs 

at sentencing, without first holding an ability-to-pay hearing, was recently 

decided by an en banc panel of this Court in Commonwealth v. Lopez, 2021 

WL 1096376 (Pa. Super. Mar. 23, 2021) (en banc). There, the defendant 

similarly appealed from a judgment of sentence, which included the imposition 

of mandatory court costs. Lopez argued that he was entitled to a hearing 

under Rule 706(C) to determine his ability to pay those court costs before the 

court imposed them at sentencing. The Lopez Court held that “while a trial 

court has the discretion to hold an ability-to-pay hearing at sentencing, Rule 

706(C) only requires the court to hold such a hearing when a defendant faces 

incarceration for failure to pay court costs previously imposed on him.” Id.

at *1.

The Lopez Court expressly rejected the argument that Section C can be 

read in isolation from the rest of Rule 706, noting that it is critical to look at 

the Rule in its entirety. Id. at *2. To that end, Rule 706 provides:

(A) A court shall not commit the defendant to prison for failure 

to pay a fine or costs unless it appears after hearing that 

the defendant is financially able to pay the fine or costs. 

(B) When the court determines, after hearing, that the 

defendant is without the financial means to pay the fine or 

costs immediately or in a single remittance, the court may 

provide for payment of the fines or costs in such 

installments and over such period of time as it deems to be 

just and practicable, taking into account the financial 

resources of the defendant and the nature of the burden its 

payments will impose, as set forth in paragraph (D) below. 

(C) The court, in determining the amount and method of 

payment of a fine or costs shall, insofar as is just and 
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practicable, consider the burden upon the defendant by 

reason of the defendant’s financial means, including the 

defendant’s ability to make restitution or reparations. 

(D) In cases in which the court has ordered payment of a fine 

or costs in installments, the defendant may request a 

rehearing on the payment schedule when the defendant is 

in default of a payment or when the defendant advises the 

court that such default is imminent. At such hearing, the 

burden shall be on the defendant to prove that his or her 

financial condition has deteriorated to the extent that the 

defendant is without the means to meet the payment 

schedule. Thereupon the court may extend or accelerate 

the payment schedule or leave it unaltered, as the court 

finds to be just and practicable under the circumstances of 

record. When there has been default and the court finds the 

defendant is not indigent, the court may impose 

imprisonment as provided by law for nonpayment.

Pa.R.Crim.P. 706. “When the sections of Rule 706 are read sequentially and 

as a whole, as the rules of statutory construction direct, it becomes clear that 

Section C only requires a trial court to determine a defendant’s ability to pay 

at a hearing that occurs prior to incarceration, as referenced in Sections A and 

B.” Lopez at *2.

Lopez further argued, as does Leister, that the trial court’s reliance on 

Childs was improper because it is inconsistent with this Court’s decision in 

Martin. The Lopez Court rejected this argument because Martin solely 

addressed the issue of whether the trial court could impose a fine without 

considering the ability to pay, and reaffirmed the Childs Court’s holding that 

a defendant is not entitled to an ability-to-pay hearing before a court imposes 

court costs at sentencing. Id. at *5. The Lopez Court added:

To be clear, nothing in this opinion is meant to strip the trial court 

of its ability to exercise its discretion to conduct such a hearing at 
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sentencing. There is no doubt that it is the trial court, and not 

this Court, which is in the best position to evaluate its own docket 

and schedule this hearing. We merely hold that nothing in the 

Rules of Criminal Procedure, the Sentencing Code[,] or 

established case law takes that discretion away from the trial court 

unless and until a defendant is in peril of going to prison for failing 

to pay the costs imposed on him. It is only at that point that the 

mandate for an ability-to-pay hearing arises. Because [the 

appellant] had not yet been threatened with incarceration as a 

result of a default, we hold that the trial court did not err by 

imposing mandatory court costs upon [him] without first holding 

an ability-to-pay hearing.

Id. 

Here, Leister has only been sentenced to pay the costs of prosecution. 

She is not facing incarceration for failure to pay those costs. Accordingly, we 

uphold the trial court’s determination that she was not entitled to an abilityto-pay hearing. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/20/2021