Commonwealth v. TrialCommonwealth v. Trial
- Reporters:
- , ,
- Before:
- Sole
Appellant takes this appeal from the mandatory sentence imposed after he was convicted in a non-jury trial of Driving Under the Influence. At question is whether the Commonwealth was able to establish the first requirement of the statute that Appellant was a person who was driving, operating “or in actual physical control of the movement of any vehicle.”
At trial the Commonwealth established that a police officer arrived at the scene at 3:31 a.m. in response to a radio communication that a vehicle was blocking the intersection of Perry Avenue. The officer testified that Appellant’s vehicle was in a diagonal position across Perry Avenue, which is a two lane residential road, and that it was positioned in such a manner that it was blocking the normal course of traffic on that roadway. The officer observed that the parking lights
Appellant argues that under the authority of Commonwealth v. Price, 416 Pa.Super. 23, 610 A.2d 488 (1992), the facts did not demonstrate that Appellant was in physical control of the vehicle. He reasons that absent such proof the Commonwealth was unable to establish the corpus delicti of the crime, thus the introduction of Appellant’s statements to the police should have been prohibited. Appellant farther submits that absent his statements the Commonwealth had no evidence of the amount of time Appellant spent in the car and therefore could not relate back Appellant’s blood alcohol content to a time when he actually operated the vehicle.
Each of Appellant’s claims must fail because they are wrongly based on the premise that
Commcmwealth v. Price, Id.
is applicable to this situation. In
Price
a trooper received a report of a car being driven recklessly at a certain location. When the trooper arrived in that area he found a vehicle with a flattened tire and broken wheel rim, which rendered the car immobile. The car was not running and the lights were not on and the keys were not in the ignition. The appellant was observed sitting in the driver’s seat and then he was seen leaving the vehicle and opening the trunk. When the trooper observed the appellant’s gait, the trooper went over and spoke to him and came to the conclusion that the appellant was
The instant case differs significantly. Appellant was not merely seated in a parked car with keys in hand. Instead Appellant was seated in the drivers side of his car which was stopped, with its lights on, across a roadway. Appellant’s seat belt was in place, and the keys were in the ignition in the “on” position. The officer who testified at trial stated that this was the position the keys would remain in the instance where the car is running or where it stalls. N.T. 11/26/94 at 22. In Price, the automobile was inoperable, the lights were off, and the keys were not in the ignition. Thus, while the Price court found that.the facts of that case did not indicate that the person seated in the parked car had physical control of the vehicle, the differing circumstances of this case warrant a different result. The circumstances of this case clearly support the conclusion that Appellant was in actual physical control of his vehicle.
The
Price
court in reaching its conclusion, made a statement that “[a
]t a very minimum,
a parked car should be started and running before a finding of actual physical control can be made.”
Price
at 27, 610 A.2d at 490. Appellant clings to this statement in hopes of relief, arguing that his parked car was not running, therefore he cannot be found to have control of the vehicle. The problem with this analysis is that
Price
court was speaking to “parked” cars. ■ Appellant’s car was not parked. It was stopped in the middle of a roadway, obstructing traffic. Although the motor was not running, the keys were in the ignition in such a manner that it is possible that
When examining all the facts of the present case it is clear that the Commonwealth established Appellant’s physical control of his vehicle. It is equally clear that the proof necessary to establish the corpus delicti of the crime was present and the introduction of Appellant’s statements to the police were properly admitted into evidence. See Commonwealth v. Kasunic, 423 Pa.Super. 112, 620 A.2d 525 (1993); Commonwealth v. DeLeon, 276 Pa.Super. 36, 419 A.2d 82 (1980).
Finally we readily dismiss Appellant’s remaining claim that the Commonwealth failed to meet its burden of proof when it did not offer expert testimony to extrapolate his blood alcohol level to the time he drove the vehicle. First, we note that the record does not reveal that Appellant was convicted of
More importantly however, the Supreme Court of Pennsylvania has just recently ruled that it is not the Commonwealth’s burden to offer expert testimony to relate back the driver’s blood alcohol content to a time when the vehicle was being driven. The Court in Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994) stated:
Upon consideration of this issue, we find no reason to require the Commonwealth to present an expert witness in these matters. We hold that once the Commonwealth has established that the driver’s blood alcohol content reflects an amount above 0.10%, the Commonwealth has made aprima facie case under 75 Pa.C.S. § 3731(a)(4) . At this point, the defendant is permitted to introduce expert testimony to rebut the Commonwealth’s prima facie evidence. If the defendant decides to rebut the prima facie evidence against him with expert testimony, then the Commonwealth may present its own expert to refute this testimony.
(538 Pa. at 329--, 648 A.2d 529.)
Based upon the holding in Yarger, Appellant’s final claim must fail.
Judgment of Sentence affirmed.
ROWLEY, President Judge, concurs in the result.