J-A23003-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARVIN U. ANDERSON

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1356 WDA 2017

Appeal from the Judgment of Sentence May 2, 2017

In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP-02-CR-0007130-2016

BEFORE: BOWES, J., SHOGAN, J., and STABILE, J.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 27, 2018

Marvin U. Anderson appeals from the May 2, 2017 judgment of sentence

of three to six days incarceration, six months probation, and fines totaling

$1,300, imposed after he was convicted at a non-jury trial of driving while

under the influence (“DUI”) (highest rate of alcohol), DUI (general

impairment), and five summary traffic offenses. He challenges the sufficiency

of the evidence sustaining his two DUI convictions. After careful review, we

reverse his DUI convictions, vacate judgment of sentence as to those

convictions, and remand for resentencing.

On June 4, 2016, at 10:34 p.m., City of Pittsburgh Police Officer Paul

Froehlich was on routine patrol in Zone 5 when he received a call dispatching

him to an accident at 7017 Hermitage Street. When he arrived at the scene,

the two vehicles involved in the minor accident were parked. Appellant was
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standing nearby with keys in his hand. In response to the officer’s questions,

Appellant confirmed that he was the driver of the Volkswagen Jetta, and that

he backed his vehicle into the victim’s vehicle. Appellant insisted, however,

that there was no damage. The officer observed a scratch on the front of the

other vehicle. He also noted that the rear of Appellant’s vehicle was too far

from the curb, and concluded that it was illegally parked.

At trial, the officer characterized Appellant as “kind of uncooperative,

agitated, stating several times that there was no damage.” N.T., 3/24/17, at

8. His eyes were glassy and bloodshot and his speech was slurred. According

to the officer, Appellant had trouble maintaining his balance and an odor of

alcohol emanated from him. Appellant agreed to submit to field sobriety tests.

The officer testified that he failed both the walk-and-turn test and the onelegged stand. Based on the foregoing, the officer concluded that Appellant

was intoxicated and unfit to drive. The officer arrested Appellant and

transported him to the police station where he submitted to a breathalyzer at

approximately 11:55 p.m., revealing a blood alcohol level (“BAC”) of .222%.

It was uncontroverted at trial that one hour and twenty-one minutes

elapsed between the time the officer received the dispatch and the time

Appellant underwent the breathalyzer. The defense stipulated to the

breathalyzer results, and they were admitted into evidence as Commonwealth

Exhibit 1.

Appellant presents two issues for our review:
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I. Whether [Appellant’s] conviction for DUI: General

Impairment must be reversed, and his judgment of

sentence in this regard must be vacated, when the

Commonwealth failed to prove, beyond a reasonable doubt,

that [Appellant] operated his car at a time he was rendered

incapable of safe driving?

II. Whether [Appellant’s] conviction for DUI: Highest Rate of

Alcohol must be reversed, and his judgment of sentence in

this regard must be vacated, when the Commonwealth

failed to prove, beyond a reasonable doubt, that [Appellant]

operated his car less than two hours before his BAC was

0.16% or higher?

Appellant’s brief at 5.

Appellant’s challenge to the sufficiency of the evidence underpinning

both of his DUI convictions focuses on the lack of proof of a temporal nexus

between his intoxication and operation of a motor vehicle. He contends that

the Commonwealth failed to prove that he drove or operated his vehicle while

incapable of safely driving,1 or in the two-hour period prior to registering a

BAC exceeding 0.16%.2

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1 DUI: General Impairment/Incapable of Driving Safely, provides in pertinent

part:

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, operation or being in actual physical control of

the movement of the vehicle.

75 Pa.C.S. § 3802(a)(1).

2 Section 3802(c), DUI-Highest Rate of Alcohol provides:
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Our standard of review of sufficiency claims is well settled:

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 to support the verdict when it establishes

each 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. Teems, 74 A.3d 142, 144-145 (Pa.Super. 2013) (quoting

Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa.Super. 2010) (citations

omitted)). “The Commonwealth may sustain its burden of proving every

element of the crime by means of wholly circumstantial evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011).

Herein, the police officer did not observe Appellant driving or operating3

a motor vehicle. The victim did not testify at trial. Appellant was standing on

____________________________________________ 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 alcohol concentration in the

individual’s blood or breath is 0.16% or higher within two hours

after the individual has driven, operated or been in actual physical

control of the movement of the vehicle.

75 Pa.C.S. § 3802(c).

3

In order to prove operation, the vehicle need not have been in motion.

Evidence is required that the defendant was in actual physical control or

management of the vehicle. See Commonwealth v. Johnson, 833 A.2d

260 (Pa.Super. 2003).
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the sidewalk in close proximity to his vehicle with his keys in his hand when

the officer arrived. The officer observed that Appellant’s car was illegally

parked too far away from the curb with the rear end of the vehicle towards

the street. The officer asked Appellant whether he struck the victim’s car

when he was backing up, and Appellant answered in the affirmative. Appellant

maintained, however, that there was no damage to the other vehicle. The

officer noted that Appellant’s speech was slurred, his eyes were bloodshot, he

emitted an odor of alcohol, and he was unable to maintain his balance. He

was unable to pass the field sobriety tests. The fact finder inferred from these

circumstances, together with Appellant’s highly-elevated BAC, that Appellant

operated the motor vehicle while he was incapable of safely doing so.

Appellant contends that, “the Commonwealth simply did not prove,

beyond a reasonable doubt, the required temporal link between [Appellant’s]

intoxication and operation of his car.” Appellant’s brief at 37-8. He maintains

that the Commonwealth offered no evidence as to when Appellant was last in

physical control of the vehicle. Both cars were parked when the officer arrived.

Although Appellant admitted his vehicle bumped the victim’s vehicle, there

was no evidence establishing when the minor accident occurred, or that the

call to police was made at the time of the accident. While Appellant concedes

that circumstantial evidence may suffice to establish guilt, he cites

Commonwealth v. Meredith, 416 A.2d 481, 485 (Pa. 1980), for the

proposition that “a conviction based wholly on inference and suspicion may
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not be allowed to stand.” The Commonwealth contends that similar

arguments were rejected by the Supreme Court in Commonwealth v.

Segida, 985 A.2d 871, 878-79 (Pa. 2009). In order to prove DUI-general impairment, the Commonwealth must

prove that the defendant drove or operated a vehicle while under the

influence, i.e., after imbibing a sufficient amount of alcohol as to be incapable

of safe driving. Herein, Appellant identified his vehicle and admitted that he

drove it. However, the Commonwealth was required to prove that he did so

while he was too intoxicated to be capable of safe driving. Commonwealth

v. Gause, 164 A.3d 532, 541 (Pa.Super. 2017). Appellant distinguishes the facts herein from those in Segida, wherein

the Supreme Court held that the evidence was sufficient to sustain the general

impairment conviction. In that case, Segida drove his car off the road and

into a tree. He told the responding officer that he had been drinking alcohol

at a bar that night. After he failed to perform field sobriety tests, Segida was

placed under arrest, and his BAC was measured at 0.326%. At trial, the officer

testified that he responded promptly to the dispatch, and that dispatches

usually issue immediately after receipt of a call. In addition, he opined, “it

was ‘doubtful’ that the accident had occurred two or three hours or even ten

minutes prior to his arrival on the scene ‘due to traffic on the road.’” Segida, supra at 880.
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Segida argued that the Commonwealth’s failure to establish the time of

his drinking, his driving, or the accident was fatal to the prosecution. The

Commonwealth countered that it was reasonable to infer, based upon the

foregoing facts, that the officer came upon the scene shortly after the

accident. Our Supreme Court agreed, finding the evidence sufficient to

support the reasonable inference that Segida drove when he was incapable of

doing so safely. It cited the officer’s opinion that it was “doubtful” based upon

traffic conditions that the accident had occurred hours, even ten minutes

before he got there. In addition, Segida’s strikingly-high blood alcohol

concentration, and the occurrence of the accident itself, supported the

inference that he was impaired due to alcohol when he last drove his vehicle.

The same circumstances the Supreme Court found persuasive in Segida

are not present herein. Appellant’s car was parked, albeit too far from the

curb, when the officer arrived. It was unoccupied and the motor was not

running. Officer Froehlich did not offer any observations that indicated that

the vehicle had been recently operated or driven, i.e., a car hood that was

warm to touch. There was no evidence introduced at trial as to how long the

car had been parked at that location. Appellant admitted that he backed into

the victim’s car as he was parking, causing a “slight scratch” on the front of

that car, but there was no evidence when that occurred. Office Froehlich offered no opinion or testimony as to when the minor

accident occurred herein. That stands in marked contrast to the officer’s
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testimony in Segida, that the accident therein likely occurred less than ten

minutes before the call to police based on traffic conditions and routine police

response time. See Commonwealth v. Teems, 74 A.3d 142, 147-148

(Pa.Super. 2013) (finding it reasonable to infer that appellant’s damaged and

immobilized vehicle did not sit on Interstate 81 for more than an hour before

troopers were dispatched to the scene, rendering the blood draw within two

hours of driving). In light of the minor nature of the accident and no evidence

that the other parked vehicle was occupied at the time, one cannot simply

infer from the occurrence of the accident that police would have been called

immediately. Furthermore, there was no testimony from Officer Froehlich that

dispatches routinely issued promptly after receipt of a call. In addition, there was no evidence from which it could be reasonably

inferred when the parking mishap occurred, as there was no indication

whether police were called at that time, or upon later discovery of the damage. Cf. Commonwealth v. Starry, __A.3d__, 2018 Pa. Super. LEXIS 1060, *15

(Pa.Super. 2018) (finding for purposes of establishing a prima facie case of

DUI-Highest Rate and Dui-General Impairment that a reasonable inference

could be made that defendant’s car left the road and struck a tree at or near

the time the first caller reported it at 11:49 a.m., since a witness told police

that defendant left his residence at 11:00 a.m., the accident occurred along a

regularly traveled county road, an ambulance was already treating defendant
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when a trooper arrived at 12:36 p.m. and noted signs of intoxication, and

defendant’s BAC at 1:40 p.m. was 0.304%).

Finally, in the instant case, unlike Segida, there was no admission by

Appellant that he drank before he drove. We find merit in Appellant’s

contention that, absent some showing of how long it was before the officer’s

arrival that Appellant last drove or operated his vehicle, the circumstances did

not negate the possibility that he became too intoxicated to drive safely after

he drove to that address and parked his vehicle. Thus, the considerably

elevated blood alcohol level is far less probative on the facts herein than in

Segida, supra. Hence, we agree with Appellant that the evidence adduced at trial was

legally insufficient to support the DUI-general impairment conviction. Without

admissions from Appellant, or testimony from the victim or an eyewitness

establishing the time Appellant last drove his vehicle, the Commonwealth

failed to prove that Appellant drove while he was incapable of safe driving.

Thus, Appellant’s conviction of DUI-general impairment cannot stand.

The dearth of evidence substantiating when Appellant last drove his

vehicle is also fatal to the DUI-Highest Rate of Alcohol conviction. While the

Commonwealth was not required to prove that Appellant’s BAC was at least

0.16% when he drove or operated a vehicle, it had to establish that his BAC

met or exceeded that level within two hours of driving. Commonwealth v.

Thur, 906 A.2d 552, 564 (“Pursuant to the words of the statute . . . the
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elements are: (1) that a person drove, operated or was in actual physical

control of a motor vehicle; and (2) that such action was conducted after

imbibing enough alcohol that the actor’s BAC reached 0.16% within two hours

after driving.”). While the evidence established that Appellant had a BAC in

excess of 0.16% within two hours of the time of the police dispatch, it failed

to prove that Appellant’s BAC reached that level within two hours of when he

last drove or operated his vehicle. Even affording the Commonwealth the

benefit of all reasonable inferences, we find the evidence insufficient to sustain

his conviction for DUI-highest rate of alcohol. One simply cannot reasonably

infer from the scant evidence offered at trial that Appellant last drove the

vehicle within two hours of the administration of the BAC test.4

Judgment of sentence for DUI-General impairment and DUI-High Rate

of Alcohol reversed and vacated. Case remanded for resentencing.5

Jurisdiction relinquished.

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4

In its brief, the Commonwealth offers additional facts derived from the

criminal complaint and the victim’s testimony at the preliminary hearing that

were not introduced at trial. See Commonwealth’s brief at 7 (representing

that the victim called 911 shortly after Appellant moved his vehicle at her

request); see id. at 15 n. 2 (setting forth allegations from the criminal

complaint detailing the police officer’s conversation with the victim). In ruling

on the sufficiency of the Commonwealth’s evidence, we consider only the

evidence adduced at trial, together with the reasonable inferences that can be

drawn therefrom.

5 Since Appellant was given no penalty at the summary convictions, our

disposition has upset the overall sentencing scheme such that resentencing is

required.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/2018