This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Lycoming County following appellant’s conviction by a jury of driving while under the influence of alcohol. 1 Following his conviction, appellant filed post-verdict motions alleging that the trial court erred in denying appellant’s motion for a new trial, 2 and challenging the sufficiency of the evidence to support the verdict with respect to the element of the offense that appellant was operating or in actual physical control of the movement of a motor vehicle. Appellant’s post-verdict motiоns were subsequently denied, and this appeal followed.
Two issues are presented for our determination: (1) whether the trial court erred in denying appellant’s motion for a mistrial (See n. 2, infra.)] and (2) whether the trial court erred in instructing the jury that appellant could be convicted for DUI if he was in actual physical control of the machinery of his motor vehicle. We find no error by the trial court and accordingly affirm the judgment of sentence.
The trial court gave the following summary of the facts from which the present case arose:
At about 12:30 a.m. on March 11,1989, an officer of the Montoursville Police Department was detailеd to investigate a report that a small sports car, with engine revving, was parked in an alley in a downtown section of the Borough of Montoursville. When the officer arrived, he found a small green Porsche -with еngine idling rapidly, parked in an alleyway near Broad Street, the main street of the Borough. The vehicle was facing Broad Street. *139 The defendant was alone in the vehicle and was behind the wheel. The defеndant told the officer he had been drinking with friends and, while driving home, did not feel well and thought it best that he pull over for a short time before continuing on.
Trial court opinion at 1.
Appellant first argues that the trial court erred in denying appellаnt’s motion for a mistrial following a statement by the prosecuting attorney during her closing argument. The record indicates that the arresting officer testified that when he had arrested appellant at the scеne, appellant had agreed to speak with the officer and stated to him that he had been drinking with friends and, while driving home, did not feel well and thought it best that he stop for a short time before continuing home. (N.T. at р. 18.) At trial, however, appellant gave an entirely different version of the facts. Appellant testified that he had arrived at the location approximately one hour before the policе officer. He stated that he had been waiting for a signal from his girlfriend, who lived in an apartment a short distance away, indicating permission to enter her home. Appellant testified that he had been waiting quite а while, so he kept the engine running to stay warm. He claimed he had done no drinking before stopping at the scene, but that he had consumed a half bottle of champagne while waiting for the signal from his girlfriend. He stated that when the police arrived, he quickly hid the champagne. Appellant testified that he did not tell the officer the truth to save embarrassment to his girlfriend. (N.T. at p. 38-44.)
In her closing argument, the assistant district attorney argued that appellant’s testimony was incredible because appellant had given the police officer at the scene a different version of the incident and had not gone to the police prior to trial to explain his subsequent version of the incident. At the conclusion of this closing argument, the defense attorney made a motion for mistrial. The trial court denied the motion, but gave the follоwing cautionary instruction:
*140 There was in the District Attorney’s argument, there was a statement to the effect that the defendant had never come forward to give the version of the testimony that he gave from the witnеss stand. To the extent the District Attorney was commenting upon the answers and explanations that the defendant gave on the night in question to the officer, that’s an appropriate comment on the evidеnce. It’s a matter for you to consider along with the Defense Counsel’s argument. However, to the extent that it implies there was some duty on the part of the defendant in a sense then to make some statements to the police or come forward and explain himself or to prove something, then that would fly in the face of the law which says the burden is not on the defense to prove innocence or prove anything, the burden is on the Commonwealth to prove its case beyond a reasonable doubt. So there is no burden on the defendant to come forward with anything. Case is here. Commonwealth has the burden оf proving it beyond a reasonable doubt.
Appellant now argues that the trial court erred in permitting the prosecutor to impeach appellant’s trial testimony by referring to his silence. Appellаnt alleges that this violated his privilege against self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.
See, Commonwealth v. Singletary,
In
Commonwealth v. Beavers,
Additionаlly, we reject appellant’s claim that his Fifth Amendment privilege was violated when the district attorney commented, during closing argument, upon appellant’s failure to contact the police prior to trial to explain the real reason he was present in the alley. We are in agreement with the trial court that any misinterpretation that the jury may have given such comment, with respect to the Commоnwealth’s burden of proof, was effectively cured by the trial court’s cautionary jury instruction.
Finally, appellant contends that the trial court erred in charging the jury that appellant could be convicted for DUI if he was in actual physical control of the machinery of his motor vehicle. Appellant concedes that the instruction is consistent with this Court’s latest pronouncement on the subject; however, appellant argues that the jury instruction, as well as this Court’s analysis, is flatly inconsistent with the plain language of 75 Pa.C.S.A. § 8731. Section 3731 provides in pertinent part:
(a) Offense defined. — A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
* * * * « *
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
In the present case, appellant argues, without citing any authority, that for one to be convicted of driving under the influence of alcohol, the motor vehicle must have been in motion. Appellant interprets the language under subsection (a), “actual physical control of the movement of any vehicle,” as requiring actual movement оf the vehicle. This *142 argument is entirely contrary to existing case authority and the legislative history and intent of 75 Pa.C.S.A. § 3731(a).
From 1959 until 1976, the Pennsylvania Driving Under the Influence Statute, then codified at 75 P.S. § 1037, provided that “[i]t shall be unlawful for any рerson to
operate
a motor vehicle ... while under the influence of intoxicating liquor ...” (emphasis added). In
Commonwealth v. Kallus,
In 1976, this section was repealed by 75 Pa.C.S.A. § 3731, which provided in pertinent part, that “[a] person shall not
drive
any vehicle while ... under the influence of alcohol ...” (emphasis added). In
Commonwealth v. Brown,
Section 3731 was amended in 1982 to the current version, in an attempt to broaden the scope of section 3731. Subsection (a) of sеction 3731, as stated above, provides that, “[a] person shall not drive, operate, or be in actual physical control of the movement of any vehicle while ... under the influence of alcohоl____” In
Commonwealth v. Crum,
In accordance with the legislative history of Pennsylvania’s driving under the influence legislation and this Court’s interpretation of the present state of the law in Crum, supra, therе is no requirement that one’s vehicle be in motion to be convicted under section 3731. We, therefore, reject appellant’s unsupported claim to the contrary. For the above reasons, we affirm the judgment of sentence.