J-S46005-17

* Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

WILMA LEE REDDER

Appellant No. 2110 MDA 2016

Appeal from the Judgment of Sentence December 1, 2016

In the Court of Common Pleas of Bradford County

Criminal Division at No(s): CP-08-CR-0000059-2016

BEFORE: BOWES, J., OLSON, J., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED JULY 26, 2017

Wilma Lee Redder appeals from the judgment of sentence of five days 

to six month’s imprisonment that was imposed after she was found guilty of 

driving under the influence of alcohol (“DUI”)--general impairment. We 

affirm. 

At approximately 9:20 p.m. on November 25, 2015, Pennsylvania 

State Trooper Albert Levanavage and Pennsylvania State Trooper Taylor 

Smith were on patrol in separate police cruisers in Bradford County when 

they were called to the scene of a suspicious vehicle on Congdon Road, in a 

rural area located approximately five to seven miles from their location. Ten 

to fifteen minutes later, the two officers found the vehicle in question, 

Appellant’s Chevrolet S-10 pick-up truck, stopped on the side of Congdon 
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Road in South Creek Township. Trooper Levanavage approached Appellant. 

Trooper Levanavage detected the odor of alcohol, and Appellant thereafter 

admitted to consuming that substance. Appellant failed a breathalyzer test 

and field sobriety tests. Trooper Levanavage concluded that Appellant had 

imbibed a sufficient amount of alcohol that she was not capable of safely 

driving her car. She consented to a blood draw, which was performed at 

11:02 p.m. on November 25, 2015. The results of testing revealed that she 

had a BAC of .148%. 

On December 17, 2015, Appellant was charged with DUI--general 

impairment, DUI with a high rate of blood alcohol content (.148%), and 

careless driving. On February 24, 2016, Appellant filed a motion for a writ of 

habeas corpus, contending that the charges in question should be dismissed. 

She averred that there was not sufficient proof to establish that she was in 

actual physical control of the vehicle since she was parked when Trooper 

Levanavage and Trooper Smith initiated their investigation. An omnibus 

pretrial hearing was held. 

Trooper Levanavage stated that, when he arrived on the scene, the 

truck’s lights were not illuminated. The vehicle was running, and he viewed 

exhaust emanating from the rear exhaust pipe. Appellant, the sole 

occupant, was in the driver’s seat with her dog in the rear of the passenger 

compartment of the truck, and she admitted that she had traveled from 

Wellsburg, New York. No other person was in the area, which was rural with 
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a few nearby houses. Defense counsel argued that Appellant’s truck was 

parked, and that Appellant placed the keys in the ignition in order to roll 

down the window to speak with Trooper Levanavage. Appellant maintained 

that videos from the cruisers would support her claim that the truck was not 

running when Trooper Levanavage arrived on the scene because they 

showed no exhaust coming from her rear exhaust pipe despite the cold. 

Before ruling on the request for habeas corpus relief, the trial court 

opted to view the videos from the two police cruisers. On June 9, 2016, the 

trial court denied the petition for habeas corpus relief. The trial court noted 

that the videos of the scene showed no exhaust emanating from any 

vehicles depicted therein. It credited Trooper Levanavage’s testimony that, 

when he approached the truck, the engine was running and found 

unbelievable Appellant’s story that she placed the keys in the ignition only to 

open her window. It therefore denied Appellant’s motion for habeas corpus

relief.

Appellant then filed a motion to suppress the results of her BAC, and 

the Commonwealth agreed to continue the prosecution without those 

results, withdrawing the charge of DUI--high rate of alcohol. On September 

19, 2016, at a nonjury trial, the trial court granted Appellant’s request to 

dismiss the careless driving charge and found her guilty of DUI--general 

impairment, second offense in ten years. She was sentenced on December 

1, 2016, and this appeal followed. 
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Appellant’s brief does not contain a separate statement of issues 

involved, but her contention on appeal is that “the court erred in denying the 

pretrial motion of appellant that she did not have actual physical control of 

her motor vehicle so as to be arrested for DUI.” Appellant’s brief at 3. 

Thus, her position is that the trial court should have granted her pretrial 

habeas corpus motion since the Commonwealth never established that she 

had actual physical control of her truck. 

A habeas corpus petition is the means by which a defendant 

challenges whether the Commonwealth has adduced sufficient proof to 

establish a prima facie case and can proceed to trial. Commonwealth v. 

Marti, 779 A.2d 1177, 1179 n.1 (Pa.Super. 2001). Once there has been an 

adjudication of guilt, any allegation that the Commonwealth failed to 

establish a prima facie case with respect to a crime is rendered moot. 

Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995); Commonwealth 

v. McCullough, 461 A.2d 1229 (Pa. 1983); Commonwealth v. Ballard,

460 A.2d 1091 (Pa. 1983). Hence, the issue, as framed by Appellant, is not 

properly before us. Instead, at this point in the proceeding, the proper 

inquiry is whether the evidence produced at the non-jury trial was sufficient 

to sustain the factfinder’s determination that Appellant was in actual physical 

control of her truck so as to sustain the general impairment conviction. 

We normally would be unable to review that question because 

Appellant did not order the trial transcript, and it is not in the record. 
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Commonwealth v. Preston, 904 A.2d 1 (Pa.Super. 2006) (it is the 

appellant’s responsibility to order transcripts necessary to conduct judicial 

review of issue raised on appeal and failure to order those transcripts results 

in waiver). However, the habeas transcript is available, and the videos of 

the incident from the two police cruisers are contained in the certified 

record. We note, “When reviewing a sufficiency claim the court is required 

to view the evidence in the light most favorable to the verdict winner giving 

the prosecution the benefit of all reasonable inferences to be drawn from the 

evidence.” Commonwealth v. Chambers, 157 A.3d 508, 512 (Pa.Super. 

2017) (citation omitted).

Trooper Levanavage reported that Appellant’s truck was running when 

he approached it, and the videos, contrary to Appellant’s assertion on 

appeal, do not refute his testimony. The videos were filmed at night, with 

only headlights illuminating the scene. Officer Smith was following Officer 

Levanavage down Congdon Road. The area was wooded with a few houses 

interspersed among the trees. No people were in the area. Trooper Smith’s 

video does not show the exhaust that was emanating from Trooper 

Levanavage’s cruiser when the vehicles were traveling along the road. 

When they found Appellant’s truck, Officer Smith pulled over and 

parked his cruiser facing Appellant’s truck. Officer Levanavage drove past 

Appellant, stopped, reversed his cruiser, and then stopped again parallel to 

the truck with his video pointed toward the road. Officer Smith’s video did 
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not capture the exhaust emanating from Officer Levanavage’s cruiser while 

Officer Levanavage’s cruiser was backing up and being placed in park, even 

though the exhaust pipe on the cruiser was closer to Officer Smith’s vehicle 

than the exhaust pipe from Appellant’s truck. Thus, the fact that there was 

no exhaust coming from the tail pipe of Appellant’s truck is of no 

consequence. The video simply failed to reveal the exhaust coming from 

any vehicle. The video from Officer Smith’s cruiser does show Appellant 

reaching to the right after Officer Levanavage stopped his cruiser beside her 

truck, but Appellant’s hand and body were obscured. It was not evident 

whether she was reaching for something or placing something to her right, 

and the object in question was not displayed in the video. 

The evidence was sufficient to sustain Appellant’s general impairment 

conviction. Pennsylvania's DUI statute provides, in pertinent part, that a 

person “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). Whether a person has operated or been in actual physical 

control of his vehicle is determined by the totality of the circumstances and 

can be established by circumstantial proof. Commonwealth v. Williams, 

941 A.2d 14, 27 (2008). The following factors are utilized in making this 
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assessment: “the motor running, the location of the vehicle, and additional 

evidence showing that the defendant had driven the vehicle.” Id. 

In this case, the video demonstrates that Appellant was sitting in the 

driver’s seat of a truck that was stopped on the berm of a remote rural road 

at night; there were no bars in the vicinity. At the habeas corpus

proceeding, Officer Levanavage testified that the truck was running when he 

approached it, and that Appellant indicated that she traveled from 

Wellsburg, New York. Thus, the record is sufficient to establish that 

Appellant was in actual physical control of her truck. Commonwealth v. 

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

Williams, 871 A.2d 254 (Pa.Super. 2005). 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/26/2017