J-A04033-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEPHEN LEE DUTTER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1215 EDA 2019

Appeal from the Judgment of Sentence Entered March 20, 2019

In the Court of Common Pleas of Montgomery County Criminal Division 

at No(s): CP-46-CR-0001460-2018

BEFORE: PANELLA, P.J., STRASSBURGER, J.*, and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED MARCH 10, 2020

Appellant, Stephen Lee Dutter, appeals from the judgment of sentence 

in the Court of Common Pleas of Montgomery County Criminal Division, 

following his bench trial convictions for driving under the influence of alcohol 

or a controlled substance (DUI)/unsafe driving, driving without a license, and 

driving while operating privilege is suspended or revoked (DUI-related).1 We 

affirm.

In its opinion, the trial court fully and correctly set forth the relevant 

facts of the case. Therefore, we have no reason to restate them. 

Procedurally, the Commonwealth charged Appellant with the above offenses 

on October 19, 2017. Appellant proceeded to a bench trial, where the court 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. §§ 3802(a)(1), 1501(a), and 1543(b)(1), respectively. 
J-A04033-20

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convicted Appellant of all charged offenses on March 20, 2019, and sentenced

him to a term of five days to six months’ for his DUI conviction, in addition to 

a concurrent 60 days’ incarceration for driving with a suspended license (DUIrelated). The court also ordered Appellant to pay the costs of prosecution and 

a fine. Appellant’s conviction for driving without a license merged for 

sentencing purposes. On April 17, 2019, Appellant timely filed a notice of 

appeal. The court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant 

complied.

Appellant raises the following issue for our review:

Was there sufficient evidence to establish that defendant 

drove the vehicle where police found him in the driver’s seat 

of a parked but running vehicle with tire tracks leading from 

the nearby road?

Appellant’s Brief at 1. 

A determination of evidentiary sufficiency presents a question 

of law. As such our standard of review is de novo and our 

scope of review is plenary. In reviewing the sufficiency of 

evidence, we must determine whether the evidence admitted 

at trial and all reasonable inferences drawn therefrom, 

viewed in the light most favorable to the Commonwealth as 

verdict winner, were sufficient to prove every element of the 

offense beyond a reasonable doubt. The facts and 

circumstances established by the Commonwealth need not 

preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be 

accorded to each witness’s testimony and to believe all, part, 

or none of the evidence. The Commonwealth may sustain its 

burden by proving every element of the crime by means of 

wholly circumstantial evidence. Moreover, as an appellate 

court, we may not re-weigh the evidence and substitute our 

judgment for that of the fact-finder.
J-A04033-20

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Commonwealth v. Russell, 209 A.3d 419, 426 (Pa. Super. 2019) (citations 

omitted). 

The DUI statute in relevant part provides:

§ 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.A. § 3802(a)(1).

Section 1543(b)(1) of the Motor Vehicle Code defines the offense of 

driving while operating privilege is suspended or revoked as follows:

§ 1543. Driving while operating privilege is suspended or revoked

* * *

(b) Certain offenses.—

(1) A person who drives a motor vehicle on a highway or 

trafficway of this Commonwealth at a time when the person’s 

operating privilege is suspended or revoked as a condition of 

acceptance of Accelerated Rehabilitative Disposition for a 

violation of section 3802 (relating to driving under influence 

of alcohol or controlled substance) or the former section 

3731, because of a violation of section 1547(b)(1) (relating 

to suspension for refusal) or 3802 or former section 3731 or 

is suspended under section 1581 (relating to Driver’s License 

Compact) for an offense substantially similar to a violation of 

section 3802 or former section 3731 shall, upon conviction, 

be guilty of a summary offense and shall be sentenced to pay 

a fine of $500 and to undergo imprisonment for a period of 

not less than 60 days nor more than 90 days.

75 Pa.C.S.A. § 1543(b)(1).
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Section 1501(a) Driving Without a License of the Motor Vehicle Code 

states the general rule that, “[n]o person, except those expressly exempted, 

shall drive any motor vehicle upon a highway or public property in this 

Commonwealth unless the person has a driver’s license valid under the 

provisions of this chapter...”. 75 Pa. C.S.A. § 1501(a).

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable William R. 

Carpenter, we conclude Appellant’s issue merits no relief. The trial court 

opinion comprehensively discusses and properly disposes of the question 

presented. (See Trial Court Opinion, filed June 27, 2019, at 3-7) (finding: 

officer’s testimony established officer responded to single vehicle accident call 

found Appellant sleeping in driver’s seat of car, with motor running, while 

parked in a field near business center; officer observed tire tracks indicating 

car went from Overbrook Road across Penn Street through a grass area and 

came to stop; officer woke Appellant, who emerged from vehicle unsteady on 

his feet, smelling like alcohol, with glassy eyes; Appellant seemed confused 

and could not answer officer’s questions; Commonwealth presented 

Appellant’s certified driving record, showing Appellant was under DUI-related 

suspension and his license had expired on June 19, 2011; that circumstantial 

evidence demonstrated Appellant drove the vehicle; thus, evidence was 

sufficient to sustain Appellant’s convictions for DUI, driving without a license, 

and driving while operating privilege is suspended or revoked.) Accordingly, 

we affirm on the basis of the trial court opinion. 
J-A04033-20

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/10/20
Circulated 02/24/2020 10:33 AM Opinion

IN THE COURT OF COMMON PLEAS OF MONTGOl\lERY COUNTY 

PENNSYLVANIA 

CRIMINAL DIVISION 

CO:tvlMONWEAL TH OF PENNSYLVANIA 

v. 

STEPHEN LEE DUTIER 

OPINION 

CARPENTER J. 

CP-46-CR-0001460-2018 

1215 EDA 2019 

JUNE 27, 2019 

FACTIJAL AND PROCEDURAL HISTORY 

Appellant, Stephen lee Dutter ("Dutter"), appeals from the · 

judgment of sentence entered on March 20, 2019, which was imposed directly 

following his convictions of driving under the influence ("DUI") - general 

impairment, driving without a hcense and driving while operating privileges are 

suspended or revoked- DUI related. Dutter's sole issue on appeal challenges the 

sufficiency of the evidence of all convictions based upon the lack of direct 

evidence that he was the driver of the vehicle. ! 

The non-jury trial held on March 20, 2019, established the 

following facts through the sole Commonwealth witness at trial, Officer \Villiam 

Steinberg of the Hatfield Township Police Department. On September 23, 2017, 

at about 5:15 a.m., Officer Steinberg responded to· a dispatch call of a onevehicle accident. (Bench Trial 3/20/19 pp. 4 - 6). Thedlspatch took him to the 

location of the Fluid Energy Processing and Equipment Center at 2629 Penn 
Street, Hatfield, Montgomery County. That's where the officer encountered 

Dutter who appeared to be sleeping in the driver's seat and the vehicle's engine 

was running. Id. at 6 - 8. 

At the scene, the officer observed tire tracks which he traced back 

to a grass area on the property of Fluid Energy. Id. at 8. From the officer's 

investigation the tracks were indicative that Dutter went from Overbrook Road 

across Penn Street through the grass and then came to a stop. Id. Officer 

Steinberg woke Dutter by knocking on the window several times. Id. at 8. The 

officer requested Dutter's identification, and he provided a Pennsylvania 

identification card. Id. at 9. 

Dutter at some point got out of the vehicle. Id. at 10. He was 

unsteady on his feet, smelled like alcohol, and his eyes were glassy. Id. at 10. 

Officer Steinberg asked Dutter what he was doing there and how he got there. 

Id. Dutter seemed confused and couldn't give the officer a direct answer to his 

questions. Id. 

Based upon the position of the vehicle, the engine running, the 

strong odor of alcohol, glassy eyes, and unsteadiness, Officer Steinberg 

suspected that Dutter had been driving under the influence of a controlled 

substance or alcohol and requested him to undergo several filed sobriety tests. 

Id. at 11 - 12. The field sobriety tests in combination of the other factors led 

the officer to arrest Dutter for driving under the influence of alcohol. Id. at 12 - 

13. 

2 
At trial, Officer Steinberg was questioned about Dutter's driving 

record. At the time of this incident, Dutter's license was suspended, DUI 

related. Id. at 13. His license had been suspended on December 18, 2008, and 

had never been restored. Id. at 15 - 16. In fact, that license expired on June 19, 

2011. Id. at 16. 

At the conclusion of the trial, this Court found Dutter guilty of the 

aforementioned charges and sentenced him to an agreed upon term of five days 

to six months' imprisonment. Id. at 39 - 40. 

A timely appeal was filed on April 17, 2019. This Court issued an 

order directing Dutter to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Dutter complied and raised a sufficiency 

challenge to all convictions. 

ISSUE 

I. Whether the evidence was sufficient to convict Dutter. when the 

circumstantial evidence established that he drove the vehicle. 

DISCUSSION 

I. The evidence was sufficient to convict Dutter, when the circumstantial 

evidence established that he drove the vehicle. 

The only issue that Dutter raises in this appeal was set forth in his 

1925(b) statement as follows: 

There was insufficient evidence presented that Mr. 

Dutter drove a vehicle, a necessary element of each of 

the crimes for which Mr. Dutter was convicted. There 

was no direct evidence that Mr. Dutter ever drove the 

vehicle he was found asleep in. 

3 
The standard of review for a challenge to the sufficiency of the 

evidence is to determine whether, when viewed in a light most favorable to the 

verdict winner, the evidence at trial and all reasonable inferences therefrom are 

sufficient for the trier of fact to find each element of the crimes charged is 

established beyond a reasonable doubt. See Commonwealth v. Dale. 836 A.2d 

150, 152 (Pa. Super. 2003). "As an appellate court, we may not re-weigh the 

evidence and substitute our judgment for that of the fact-finder. Any question 

of doubt is for the fact-finder unless the evidence is so weak and inconclusive 

that as a matter of law no probability of fact can be drawn from the combined 

circumstances." Commonwealth v. Thomas. 988 A.2d 669, 670 (Pa. Super. 

2009)(citations omitted). 

In this case, there is no question that there was no direct evidence 

that established Dutter drove the vehicle.' Rather the issue is whether the 

circumstantial evidence was sufficient to establish that fact for each conviction. 

This Court determined that there was based upon the following rationale. 

a. DUI- General Impariment 

The Pennsylvania Vehicle Code defines DUI as follows: 

(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. 

On cross-examination, Officer Steinberg admitted that he did not see Dutter operate the 

vehicle. (Bench Trial 3/20/19 p. 18). 

4 
75 Pa.CS.A. § 3802(a)(l). 

The term "operate" requires evidence of actual physical control of 

the vehicle to be determined based upon the totality of the circumstances. "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. Williams, 

941 A.2d 14, 27 (Pa.Super. 2008) (internal citations and some quotation marks 

omitted). "The Commonwealth can establish that a defendant had 'actual 

physical control' of a vehicle through wholly circumstantial evidence." Id. 

Furthermore, a police officer may utilize both his experience and personal 

observations to render an opinion as to whether a person is intoxicated. Id. 

At trial, Officer Steinberg responded to a call for a one-vehicle 

accident. When he arrived on the scene he found Dutter sleeping behind the 

wheel in the driver's seat and the motor was running. He was also able to trace 

back the tire tracks from Dutter's car. This indicated that Dutter had driven 

across a grass area to his final resting place at the Fluid Energy Processing and 

Equipment Center at about 5:15 in the morning. The officer had to wake up 

Dutter in order to ask him for his identification. This Court found that this was 

sufficient circumstantial evidence that Dutter actually operated the vehicle, i.e., 

that he was the driver of the vehicle. 

5 
b. Driving Without a License and Driving While Operating Privileges Are 

Suspended or Revoked-DUI Related 

Under the Pennsylvania Vehicle Code, a defendant is guilty of 

driving without a license as follows: 

(a) General rule+No person, except those expressly 

exempted, shall drive any motor vehicle upon a 

highway or public property in this Commonwealth 

unless the person has a driver's license valid under the 

provisions of this chapter ... 

75 Pa.CS. § l 501(a). 

Section l 543(b)(l)(i) of the Vehicle Code, driving while operating 

privilege is suspended or revoked, DUI-related, provides, in relevant part: 

(i) A person who drives a motor vehicle on a 

highway or trafficway of this Commonwealth at 

a time when the person's operating privilege is 

suspended or revoked ... [ ]relating to driving 

under influence of alcohol or controlled 

substance[ ] ... shall, upon a first conviction, be 

guilty of a summary offense and shall be 

sentenced to pay a fine of $ 500 and to undergo 

imprisonment for a period of not less than 60 

days nor more than 90 days. 

75 Pa.CS.A. § l 543(b)(l)(i). The critical element, in this case, is whether Dutter 

was driving. Commonwealth v. Costa-Hernandez, 802 A.2d 671, 673 (Pa.Super. 

2002). In order to prove that one "drives" a vehicle, the Commonwealth must 

prove that the car was in motion at the time in question. Id. at 674. The 

Commonwealth need not produce direct evidence of driving, but may instead 

rely on circumstantial evidence creating the inference that the vehicle had been 

in motion in order to meet its evidentiary burden. Id. 

6 
In this case, for all of the reasons that were set forth above, there 

was sufficient circumstantial evidence that Dutter was in fact the driver of the 

vehicle to sustain his convictions. 

CONCLUSION 

Based on the forgoing analysis, Dutter's judgment of sentence 

imposed on March 20, 2019, should be affirmed. 

BY THE COURT: 

WILLIAM 

wJr){z

R. CARP

�

ENtER J. 

COURT OF COMMON PLEAS 

MONTGOMERY COUNTY 

PENNSYLVANIA 

3grn JUDICIAL DISTRICT 

Copies sent on June 27, 2019 

By Interoffice Mail to: 

Court Administration 

Katherine E. Ernest, Esquire, Assistant Public Defender 

By First Class Mail to: 

Stephen Lee Dutter 

3 31 Golf Road 

Tamaqua, PA 18252 

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