J-A22031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

THERESA M. ULEN

                            Appellant                  No. 1946 MDA 2015


           Appeal from the Judgment of Sentence November 3, 2015
             In the Court of Common Pleas of Cumberland County
             Criminal Division at No(s): CP-21-CR-0000410-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY GANTMAN, P.J.:                     FILED SEPTEMBER 19, 2016

        Appellant, Theresa M. Ulen, appeals from the judgment of sentence

entered in the Cumberland County Court of Common Pleas, following her

bench trial convictions for driving under the influence of alcohol or a

controlled substance (”DUI”) (general impairment and high rate of alcohol),

driving while operating privilege is suspended or revoked (DUI-related), and

restrictions on alcoholic beverages.1 We affirm.

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

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

Procedurally, the Commonwealth charged Appellant with the various

offenses on April 13, 2015. Appellant proceeded to a bench trial, where the
____________________________________________


1
    75 Pa.C.S.A. §§ 3802(a)(1), (b); 1543(b)(1); and 3809(a), respectively.
J-A22031-16


court convicted Appellant of all charged offenses on September 8, 2015, and

ordered a pre-sentence investigation report.     On November 3, 2015, the

court sentenced Appellant to a term of forty-eight (48) hours to six (6)

months’ incarceration for her DUI high rate of alcohol conviction, in addition

to 60 days’ incarceration for driving with a suspended license (DUI-related).

The court also ordered Appellant to pay the costs of prosecution and a fine.

Appellant’s conviction for DUI general impairment merged for sentencing

purposes. On November 5, 2015, Appellant timely filed a notice of appeal.

The court ordered Appellant on November 6, 2015, to file a concise

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

Appellant timely complied on November 24, 2015, before filing an amended

Rule 1925(b) statement on November 25, 2015.

      Appellant raises the following issues for our review:

         WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND
         A REASONABLE DOUBT THAT [APPELLANT] DROVE,
         OPERATED, OR WAS IN ACTUAL PHYSICAL CONTROL OF
         THE MOVEMENT OF A VEHICLE TO SUPPORT A FINDING OF
         GUILT FOR DRIVING UNDER THE INFLUENCE, GENERAL
         IMPAIRMENT AND DRIVING UNDER THE INFLUENCE, HIGH
         RATE?

         WAS THERE INSUFFICIENT EVIDENCE TO PROVE BEYOND
         A REASONABLE DOUBT THAT [APPELLANT] DROVE A
         MOTOR VEHICLE ON A HIGHWAY OR TRAFFICWAY OF THIS
         COMMONWEALTH TO SUPPORT A FINDING OF GUILT FOR
         DRIVING WHILE OPERATING PRIVILEGE IS SUSPENDED
         OR REVOKED, DUI-RELATED?

(Appellant’s Brief at 6).

      When examining a challenge to the sufficiency of evidence:

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          The standard we apply in reviewing the sufficiency of the
          evidence is whether viewing all the evidence admitted at
          trial in the light most favorable to the verdict winner, there
          is sufficient evidence to enable the fact-finder to find every
          element of the crime beyond a reasonable doubt. In
          applying [the above] test, we may not weigh the evidence
          and substitute our judgment for the fact-finder.            In
          addition, we note that the facts and circumstances
          established by the Commonwealth need not preclude every
          possibility of innocence.        Any doubts regarding a
          defendant’s guilt may be resolved by the fact-finder unless
          the evidence is so weak and inconclusive that as a matter
          of law no probability of fact may be drawn from the
          combined circumstances. The Commonwealth may sustain
          its burden of proving every element of the crime beyond a
          reasonable doubt by means of wholly circumstantial
          evidence. Moreover, in applying the above test, the entire
          record must be evaluated and all evidence actually
          received must be considered. Finally, the [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

      The Motor Vehicle Code governs “serious traffic offenses,” which occur

“upon highways and trafficways throughout this Commonwealth.”              75

Pa.C.S.A. 3101(b).      DUI is classified as a serious traffic offense.    75

Pa.C.S.A. § 3802(a)(1), (c). The Motor Vehicle Code defines “Highways” and

“Trafficways” as follows:

          § 102. Definitions

          Subject to additional definitions contained in subsequent
          provisions of this title which are applicable to specific
          provisions of this title, the following words and phrases

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        when used in this title shall have, unless the context
        clearly indicates otherwise, the meanings given to them in
        this section:

                                 *    *    *

        “Highway.”       The entire width between the boundary
        lines of every way publicly maintained when any part
        thereof is open to the use of the public for purposes of
        vehicular travel. The term includes a roadway open to the
        use of the public for vehicular travel on grounds of a
        college or university or public or private school or public or
        historical park.

                                 *    *    *

        “Trafficway.” The entire width between property lines or
        other boundary lines of every way or place of which any
        part is open to the public for purposes of vehicular travel
        as a matter of right or custom.

                                 *    *    *

75 Pa.C.S.A. § 102. 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.

                            *    *    *

           (b) High rate of alcohol.—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 at least 0.10% but

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           less than 0.16% 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.A. § 3802(a)(1), (b).

     Section 1543 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).

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

applicable law, and the well-reasoned opinion of the Honorable Albert H.

Masland, we conclude Appellant’s issues merit no relief.        The trial court

opinion comprehensively discusses and properly disposes of the question

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presented. (See Trial Court Opinion, filed January 7, 2016, at 3-6) (finding:

(1)-(2) officer’s testimony established Appellant was sitting behind wheel of

car, with motor running, while parked partially in roadway and partially on

stranger’s lawn; Appellant’s husband was in passenger seat of car;

Appellant’s car heater was blowing strongly; officer detected strong odor of

alcohol emanating from vehicle, and Appellant’s eyes were glassy and

bloodshot; Appellant was evasive as to why car was parked in that manner,

and failed to produce requested identification; when Appellant exited vehicle,

she was unsteady on her feet, slurred her speech, and continually changed

her story about when she consumed alcohol and how much alcohol she

consumed; officer spotted open bottle of wine in driver’s side door, and

empty bottle of wine in back seat; blood draw revealed Appellant had blood

alcohol concentration of .134%; Appellant testified another person had

driven her to that location to wait for another acquaintance who lived

nearby; acquaintance for whom Appellant was supposedly waiting was out of

state on night of incident; Appellant’s testimony was incredible and

unsubstantiated by acquaintance’s testimony; Commonwealth presented

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

license suspension; evidence demonstrated Appellant was in actual physical

control of vehicle, and permitted inference Appellant had driven herself to

that location; road where Appellant parked was open to public for vehicular

travel, and constituted trafficway for purposes of DUI statute; thus, evidence


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was sufficient to sustain Appellant’s convictions for DUI general impairment,

DUI high rate of alcohol, and driving while operating privilege is suspended).

Accordingly, we affirm on the basis of the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2016




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                                                                      Circulated 08/31/2016 12:39 PM




COMMONWEAL TH                               IN THE COURT OF COMMON PLEAS OF
                                            CUMBERLAND COUNTY, PENNSYLVANIA

      v.
THERESA MARIE ULEN                          CP-21-CR-0410-2015               (")
                                                                             c:
            IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE()}?.~~                            '.:-;-~
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                           APPELLATE PROCEDURE 1925
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Masland, J., January 7, 2016:-                                                             3
                                                                              :·:-·::.-,    w
              Defendant, Theresa Marie Ulen, appeals this court's judqmentof se11tMnce
                                                                               ·-~;    w
                                                                               J>
following the guilty verdicts entered after a nonjury trial on the charges of Driving Under

the Influence, General Impairment, Driving Under the Influence, High Rate, and Driving

While Operating Privilege is Suspended or Revoked, DUI-Related. Defendant

complains of the following matters on appeal:

       1.  There was insufficient evidence to prove beyond a reasonable doubt that
       Defendant drove, operated, or was in actual physical control of the movement of
       a vehicle to support a finding of guilt for Driving Under the Influence, General
       Impairment and Driving Under the Influence, High Rate.

       2. There was insufficient evidence to prove beyond a reasonable doubt that
       Defendant drove a motor vehicle on a highway or trafficway of this
       Commonwealth to support a finding of guilt for Driving While Operating Privilege
       Is Suspended or Revoked, DUI-Related.

Amended Concise Statement of the Errors Complained of on Appeal, filed November

25, 2015.

                                         I. Facts

       On September 24, 2014 at around 3:00 a.m., Justin Alexander observed a

suspicious vehicle parked in his yard. The vehicle was partially parked on the roadway

and partially in his yard. The motor was running and the parking lights were on. He

was unable to see into the vehicle, but out of concern for his family, Mr. Alexander
CP-21-CR-0410-2015

contacted police. Officer Katie Justh responded to the call. Upon her arrival on the

scene, she observed a gold vehicle parked near Mr. Alexander's residence partially

blocking and obstructing traffic. The vehicle was in a residential area where all the

homes had driveways, so it was particularly suspicious that the car was parked on the

side of the road in such a manner. Officer Justh observed that the vehicle had its

engine running and parking lights on and was occupied by two people.

       Officer Justh approached the vehicle and knocked on the window to speak to the

driver, whom she later identified as the Defendant. She observed that the windows

were steamed up and the car heater was blowing strongly. When Officer Justh

questioned the Defendant regarding why she was parked halfway off the road in a

running car in the middle of the night, the Defendant was evasive. The Defendant was

unable to produce any form of identification, but did provide her name. Officer Justh

detected a strong odor of alcoholic beverage emanating from the vehicle and the

Defendant's eyes were glassy and bloodshot. At one point, the Defendant stepped out

of the vehicle and Officer Justh observed an open bottle of wine in the driver's side door

pocket. She also observed an empty bottle of wine in the back seat of the vehicle.

       After the Defendant exited the vehicle she remained uncooperative and was

 unable to explain her situation, other than a vague explanation that she was waiting for

 a friend. The Defendant was unsteady on her feet, her speech became slurred, and the

 odor of alcoholic beverage was very predominant coming off of her. During questioning

 her story kept changing. She said she had been drinking hours ago and then said she

 drank thirty minutes ago after the car had been parked.




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CP-21-CR-0410-2015


       Due to her physical condition, the Defendant was unable to perform a full

standard field sobriety test, but a preliminary breath test indicated the presence of

alcohol and the Defendant continued to have difficulty following the Officer's

instructions.   Based on the totality of the circumstances, Officer Justh arrested the

Defendant on suspicion of Driving Under the Influence.

       While Officer Justh was transporting the Defendant to Carlisle Regional Medical

Center for a legal blood draw, the Defendant began screaming that she needed medical

attention and demanded to be taken to Holy Spirit Hospital. The Defendant would not

state the reason for her demand, but in an abundance of condition, Officer Justh

acquiesced and took her to Holy Spirit Hospital. At Holy Spirit the Defendant received

her requested medical attention and Officer Justh, with assistance from hospital staff,

began the process of administering a legal blood draw. After Defendant's initial request

to see an attorney, the Officer explained the legal blood draw process by reading her

the DL-26 chemical testing warning form. The Defendant then consented to giving

blood. Ultimately, testing revealed the Defendant had a blood alcohol concentration of

.134%. A review of the Defendant's certified driving record also revealed that, at the

time of her arrest, the Defendant's license was suspended, DUI-related.

                                        II. Discussion

        Defendant disputes the sufficiency of the evidence that she was ever in actual

physical control of her vehicle. She testified on her own behalf that on the evening of

 her arrest, her cousin had driven her vehicle to the location where she was ultimately

 discovered and that she was waiting there for a friend who was going to then drive the

 vehicle to New Jersey. She claimed she never drove the vehicle but merely sat in the



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driver's seat and turned the car partially on without engaging the engine to use the car's

heater. No one ever saw her drive the vehicle, so she argues that there was not

sufficient evidence to support her convictions.

       "The standard of reviewing the sufficiency of the evidence is whether the

evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed

in the light most favorable to the Commonwealth as the verdict winner, is sufficient to

support all the elements of the offense beyond a reasonable doubt." Commonwealth v.

Strouse, 909 A.2d 368, 368-69 (Pa. Super. 2006). "The Commonwealth need not

preclude every possibility of innocence or establish the defendant's guilt to a

mathematical certainty." Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa. Super.

2005). The finder of fact--here, the court--exclusively weighs the evidence, assesses

the credibility of witnesses, and may choose to believe all, part, or none of the evidence.

Commonwealth v. Sanchez, 36 A.3d 24 (Pa. 2011).

       At trial, Defendant disputed whether the Commonwealth had proven she was in

actual physical control of her vehicle at the time she was intoxicated. Our appellate

courts have stated:

       [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. More specifically, the suspect location of an automobile
       supports an inference that it was driven, a key factor in the finding of actual
       control.

 Commonwealth v. Woodruff, 668 A.2d 1158, 1161 (Pa. Super. 1995) (internal quotation

 marks and citations omitted).

        First, the court notes that the Defendant's testimony at trial was wholly not

 credible. Her implausible explanations were further unsupported by the testimony of her

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CP-21-CR-0410-2015


acquaintance, the supposed chauffeur, who was out of state on the night in question.

Second, the Defendant was in the driver's seat of the vehicle, with the motor running

and lights on while parked part way in Mr. Alexander's yard and part way on a

residential motor way. After dismissing her incredible excuse, the only reasonable

inference to draw was that the Defendant had driven the vehicle to its ultimate

destination. Further, the fact of the Defendant's DUI-related license suspension was

proven by the entry into evidence of the Defendant's Certified Driving Record at

Commonwealth's Exhibit 1.

       Next, Defendant argues there was insufficient evidence to prove beyond a

reasonable doubt that she drove a motor vehicle on a highway or trafficway of this

Commonwealth to support a guilty verdict for Driving Under Suspension, DUI-Related.

       The Motor Vehicle Code defines "highway" as:

       The entire width between the boundary lines of every way publicly maintained
       when any part thereof is open to the use of the public for purposes of vehicular
       travel. The term includes a roadway open to the use of the public for vehicular
       travel on grounds of a college or university or public or private school or public or
       historical park.

75 Pa.C.S. § 102 (emphasis added).

       The Code defines "trafficway" as, "[t]he entire width between property lines or

other boundary lines of every way or place of which any part is open to the public for

purposes of vehicular travel as a matter of right or custom." Id. (emphasis added).

       As testified to by Mr. Alexander and Officer Justh, Defendant's vehicle was

discovered partially parked on a residential road that was lined with homes connected to

the road by driveways. As such, the road was obviously open to the public for vehicular




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travel and therefore meets the statutory definition for highway or trafficway.   Defendant's

second argument must fail.

                                      Ill. Conclusion

       In sum, the credible testimony of Officer Justh and Justin Alexander, along with

the uncontroverted evidence of the Defendant's blood alcohol concentration and driving

record vastly outweigh the Defendant's completely implausible testimony and constitute

sufficient evidence to support all of the convictions in this matter. Further, the nature of

the roadway, as credibly described by the witnesses, clearly establishes that it

constituted a highway or trafficway for the purpose of convicting Defendant of Driving

Under Suspension - DUI Related. It is respectfully submitted that this court's judgment

of sentence be affirmed in all respects.

                                                    By the Court,




 Matthew P. Smith, Esquire
 District Attorney's Office

 Joshua M. Yohe, Esquire
 Public Defender's office
 For Defendant



                                                                                    JAN fJ 7 2016
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