J-S56005-16

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

Appellee

v.

REBECCA LYNN LENTZ,

Appellant No. 901 MDA 2015

Appeal from the Judgment of Sentence December 11, 2014

In the Court of Common Pleas of Bradford County

Criminal Division at No(s): CP-08-CR-0000463-2014

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.* 

DISSENTING MEMORANDUM BY STEVENS, P.J.E.:FILED OCTOBER 21, 2016

The Pennsylvania Legislature, seeking to protect the public, has 

addressed the serious problem of threats to public safety by drunk drivers 

with 75 Pa.C.S. § 3802 et seq. Making clear its intent to protect the public, 

the law directs that evidence that a person drove, operated, or was in 

control of a motor vehicle while impaired or with a BAC of .08% or higher is 

enough by itself to convict the person of DUI. Id.

The Majority would require the state trooper in the instant case to sit 

idly by and wait until Appellant placed her car in motion and put members of 

the public at heightened risk before making an arrest. Such a requirement 

goes against the intent of the Legislature, and I respectfully dissent.

Within the DUI statutory scheme of this Commonwealth, our General 

Assembly has proscribed the commission of any of three distinct actions by a 

driver after he or she imbibes to excess: driving, operating, or being in 
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actual physical control of the movement of a vehicle. Under our rules of 

statutory construction, we must presume that “the legislature does not 

perform useless acts in adopting the words of a statute.” Commonwealth 

v. Elliott, 50 A.3d 1284, 1290 (Pa. 2012) (citation and quotation marks 

omitted). “Thus, when the legislature uses [ ] different words, we must also 

presume that it must have meant for the words to have separate meanings.” 

Id. (citations and internal quotation marks omitted).

We have construed the term “operate” to “require 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). In Commonwealth v. James, 863 A.2d 1179 

(Pa.Super. 2004) (en banc), we recognized that evidence could establish 

that a driver was in actual physical control over the machinery of a car even 

though the car never moved. Specifically, we stated:

Since the scope of the [DUI] statute was broadened, we have 

held that “operate” does not require evidence that the vehicle 

was in motion; it merely requires evidence of actual physical 

control of either the machinery of the motor vehicle or the

management of the vehicle's movement. Thus, the question of 

“actual physical control” only arises where the Commonwealth 

cannot show that a defendant operated a car by moving it.

Id. at 1185 (citations omitted). Our prior decision in Commonwealth v. 

Grimes, 648 A.2d 538 (Pa.Super. 1994), informed this construction of the 

DUI statute. 
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In Grimes, the defendant was convicted under, inter alia, a prior but 

functionally equivalent version of the DUI law for our present purposes. The 

evidence revealed that the defendant, while in the driver’s seat of his truck, 

revved the engine for about five minutes while parked outside a bar. An 

investigating police officer discerned that the defendant was intoxicated. 

This Court determined that the Commonwealth had met its burden of 

establishing the defendant was in “actual physical control” over the vehicle, 

even though the vehicle never moved. Specifically, we observed:

It is well settled that in order to be convicted under this statute, 

the Commonwealth need not prove that the vehicle was in 

motion at the time of the incident, but rather, must simply prove 

that the defendant was in actual physical control over the 

vehicle, and was, thus, a threat to public safety. 

Commonwealth v. Crum, 523 A.2d 799, 801-02 (Pa.Super. 

1987). The concept of “actual physical control” involves the 

control of the movements of either the machinery of a motor 

vehicle or of the management of the vehicle itself, without a 

requirement that the entire vehicle be in motion. 

Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa.Super. 

1991).

Id. at 543.

In my view, the particular facts of the case sub judice sufficed to show 

that Appellant’s conduct satisfied the first definition of “operate,” as she was 

in actual physical control of the machinery of the motor vehicle at the time 

Trooper McDermott prevented her from pulling away. Unlike the driver in 

Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994), for example, 

who, as the majority explained, was found asleep in a parked car outside a 

bar, Appellant had just assumed control of a vehicle parked momentarily on 
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the berm of a roadway with its engine running and lights on. Seated in a 

driving position with her hands on the steering wheel, Appellant 

acknowledged to the investigating trooper that she was ready to resume her 

party’s trip home. Under our precedent, this evidence sufficed to establish 

Appellant’s operation of the vehicle. 

The majority dismisses Appellant’s intent to drive immediately as 

irrelevant to our inquiry under Sections 3802(a)(1),(c), but under the 

totality of circumstances I consider her stated intent to be a key component 

to a finding that she was in operation of the vehicle in question. Indeed, we 

have previously identified the intent to drive as a distinguishing factor taking 

a case outside of the Byers “sleeping it off” line of cases:

Here, appellant was parked on a public street in front of a store. 

While it is unclear from the record where appellant had been 

drinking prior to his arrest, appellant was not sitting in the 

parking lot of a bar, as in Byers. As the trial court states, the 

presence of a cold, unopened six-pack of beer in appellant’s car 

indicates that he was not “sleeping it off” but intended to drive 

his vehicle to his home or some other location to continue 

drinking and become even more intoxicated.

Commonwealth v. Toland, 995 A.2d 1242, 1247 (Pa.Super. 2010).

Appellant was not seated in a car parked at the bar where she and her 

companion had just imbibed. She had, instead, assumed actual physical 

control over the machinery of a car momentarily stopped while in transit 

when she sat in the driver’s seat, placed her hands on the steering wheel, 

and positioned herself to drive away. Such a construction of our DUI law is 

consistent with both our prior interpretation of the statutory language and 
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the public protection purposes of the scheme as a whole. Accordingly, I 

would affirm judgment of sentence.