Com. v. Hayes, T.

• Court: Superior Court of Pennsylvania
• Decided: October 13, 2023
• Docket: 1292 WDA 2022
• Status: Unpublished

Opinion

J-S28012-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TOMMY ALEXANDER HAYES : : Appellant : No. 1292 WDA 2022

Appeal from the Judgment of Sentence Entered August 17, 2022 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0002287-2021

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

MEMORANDUM BY PANELLA, P.J.: FILED: October 13, 2023

Tommy Alexander Hayes appeals from the judgment of sentence after

the trial court convicted him of driving under the influence (“DUI”), operating

a vehicle without financial responsibility, and driving with a suspended license.

Hayes argues that the evidence was insufficient to support his DUI conviction

because the Commonwealth failed to establish that he was impaired at the

time he was driving the vehicle. We affirm.

For purposes of this appeal, Hayes does not dispute that he was

intoxicated when he was arrested by Officer Zachery Potts of the Economy

Borough Police Department. Following trial, the trial court found Hayes guilty

of the aforementioned crimes. The trial court sentenced Hayes to six months

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* Former Justice specially assigned to the Superior Court. J-S28012-23

of restrictive probation, with electronic monitoring for the first 30 days, and

fines. Hayes filed a post-sentence motion, which the trial court denied. Hayes

filed this timely appeal. Hayes’s argument on appeal is premised on the

undisputed fact that he last operated his vehicle two hours before he was

arrested. According to Hayes, the Commonwealth failed to prove that he did

not imbibe alcohol in the intervening hours, thereby rendering it mere

supposition that he was intoxicated when he drove.

We review Hayes’s sufficiency of evidence challenge under the following

standard of review:

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 that of 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 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. Dahl, 296 A.3d 1242, 1250 (Pa. Super. 2023) (citation

and brackets omitted).

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Hayes contends that the evidence was insufficient to support his DUI

conviction because the Commonwealth failed to establish that he was impaired

“at the time of driving” the vehicle. Appellant’s Brief at 10, 13, 14, 16. Hayes

highlights that he never admitted to when or where he had been drinking, his

vehicle was parked in a parking lot, he had not operated the vehicle for nearly

two hours before being discovered by officers, there were no field sobriety

tests or chemical testing conducted, and Officer Potts did not search his

vehicle to determine whether he had consumed alcohol after operating the

vehicle. See id. at 14-15. Hayes further notes that there was no evidence that

he had an enormously elevated blood alcohol content to overcome the time

that had passed between his driving of the vehicle and when the officers found

him. See id. at 16. Hayes asserts that the evidence leaves open the possibility

that he only consumed alcohol at the scene after parking when he was no

longer driving or operating the vehicle. See id. at 14-15.

Section 3802(a)(1) of the Vehicle Code provides that “[a]n 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.” 75 Pa.C.S.A. § 3802(a)(1). Section

3802(a)(1) is an “at the time of driving” offense. Commonwealth v. Segida,

985 A.2d 871, 878 (Pa. 2009). In other words, an “at the time of driving

offense” requires proof that the defendant “was driving, operating, or in actual

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physical control of the movement of a vehicle during the time when he or she

was rendered incapable of safely doing so due to the consumption of alcohol.”

Id. at 879; see also Commonwealth v. Clemens, 242 A.3d 659, 665 (Pa.

Super. 2020) (“The Commonwealth must establish that the defendant (1) was

operating a motor vehicle (2) after imbibing a sufficient amount of alcohol

such that he was rendered incapable of safely operating the motor vehicle.”

(citation omitted)).

To prove a person is incapable of driving safely, the Commonwealth must prove that alcohol has substantially impaired the normal mental and physical faculties required to operate the vehicle safely; substantial impairment means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions. The meaning of substantial impairment is not limited to some extreme condition of disability. Section 3802(a)(1), like its predecessor, is a general provision and provides no specific restraint upon the Commonwealth in the manner in which it may prove that an accused operated a vehicle under the influence of alcohol to a degree which rendered him incapable of safe driving.

Clemens, 242 A.3d at 665 (citation omitted); see also Commonwealth v.

Eichler, 133 A.3d 775, 790 (Pa. Super. 2016) (“Regardless of the type of

evidence that the Commonwealth proffers to support its case, the focus of

subsection 3802(a)(1) remains on the inability of the individual to drive safely

due to consumption of alcohol—not on a particular blood alcohol level.”

(citation omitted)). “The Commonwealth can establish through wholly

circumstantial evidence that a defendant was driving … a motor vehicle.”

Commonwealth v. Dirosa, 249 A.3d 586, 589 (Pa. Super. 2021) (citation

omitted).

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Officer Potts testified that just before midnight on October 23, 2021, he

was dispatched to a Taco Bell parking lot after receiving a call about a possibly

intoxicated male sleeping in his vehicle. See N.T., 9/14/22, at 17-18, 46-47.

Officer Potts indicated that the vehicle was “parked crooked in between the

two white lines in the parking lot.” Id. at 18. Upon approaching the vehicle,

Officer Potts observed Hayes bundled up in a red hoody sitting in the back

seat of the vehicle. See id. at 19, 42. He attempted to gain Hayes’s attention

by knocking on the window but received no response. See id. at 19, 43, 48.

Officer Potts then opened the rear passenger door and tapped Hayes on

the leg; eventually, Hayes started to wake up and crawled out of the vehicle.

See id. at 19, 20, 43, 48-49. Hayes dropped a knife after alighting from the

vehicle. See id. at 20-21. Thereafter, Officer Potts retrieved the knife and

conducted a pat down search for weapons. See id. at 21. He noted that Hayes

was confused; he had difficultly following instructions; his pupils were dilated

and his eyes were glassy; he was slurring his words; and he smelled like

alcohol. See id. at 20-22. Officer Potts opined that Hayes drove to the parking

lot while intoxicated. See id. at 22.

Officer Potts indicated that Hayes stated that a friend had dropped him

off at the parking lot and he was staying at a motel up the road. See id. at

23. He asked Hayes to do some field sobriety tests, which Hayes refused;

Hayes was then placed under arrest for suspicion of DUI. See id. at 23, 27,

49. After asking Hayes whether he needed anything from the vehicle, Hayes

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wanted his wallet, phone, and keys. See id. at 27, 50. The officers found the

items along with a small bag of marijuana in the vehicle. See id.

Officer Potts testified that he obtained video footage from a license plate

reader camera at the corner of Economy Way and Route 65, which faced the

Taco Bell. See id. at 24-25, 36. He noted that Hayes’s vehicle enters the

frame of the video at 10:02 p.m., when he turned into the Taco Bell parking

lot. See id. at 37, 39, 55. Officer Potts highlighted that Hayes did not use his

turn signal when entering the parking lot, and that he entered into the left

lane of a two lane road while turning right off of Route 65. See id. at 39, 55-

56. Officer Potts indicated that Hayes strikes the curb as he pulled into a

parking spot. See id. at 39, 60-61. Officer Potts observed that Hayes parked

crookedly between two parking spots. See id. At approximately 11:06 p.m.,

Hayes gets out of the driver’s seat and gets into the rear of the vehicle. See

id. at 40, 61-62. The video shows Officer Potts arrived on the scene at 11:54

p.m. See id. at 41, 62-63.

This evidence, viewed in a light most favorable to the Commonwealth

as the verdict winner, was sufficient to establish that Hayes drove to the Taco

Bell parking lot while intoxicated and parked his vehicle. See Dirosa, 249

A.3d at 589. While Hayes claims it is equally possible that he became

intoxicated after he parked the vehicle, the Commonwealth presented

significant evidence to the contrary. Specifically, the evidence demonstrated

that when Hayes drove the vehicle into the Taco Bell parking lot, he hit a curb

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when attempting to park the vehicle, parked the vehicle crookedly between

two parking spots, then, after about an hour, got out of the driver’s seat and

went to sleep in the back of the vehicle. When Officer Potts found him 40

minutes later, Hayes was completely unresponsive and clearly drunk.

Additionally, when Officer Potts and another officer searched the vehicle, there

was no evidence that they observed empty bottles inside. See Trial Court

Opinion, 12/29/22, at 9-10 n.22 (noting that had Hayes “parked his car and

then began consuming enough alcohol to become unconscious, [the trial

c]ourt would expect that [Officer Potts] would have observed the beverage

container laying about the rear seat area where [he] lost consciousness.”).

Finally, the Commonwealth presented two pieces of evidence that Hayes

was conscious of his guilt. First, the Commonwealth presented evidence that

Hayes lied to Officer Potts about how he had arrived at the parking lot. This

lie constitutes evidence of Hayes’s consciousness of guilt. See

Commonwealth v. Chapman, 136 A.3d 126, 128 (Pa. Super. 2016).

Second, the Commonwealth presented evidence that Hayes refused chemical

testing after he was arrested. N.T., 9/14/22, at 28. This also constituted

evidence of Hayes’s consciousness of guilt. See 75 Pa.C.S.A. § 1547(e).

In light of the foregoing, we conclude that the evidence was sufficient,

such that the trial court, sitting as fact-finder, was not engaging in mere

supposition in finding that Hayes was intoxicated when he drove the vehicle

into the parking lot. See Dirosa, 249 A.3d at 590 (concluding that the

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Commonwealth presented sufficient evidence to show that appellant drove a

motor vehicle while under the influence of alcohol where he was discovered

sleeping in his parked vehicle and was initially unresponsive to officers and

admitted to drinking alcohol); see also Commonwealth v. Williams, 871

A.2d 254, 260 (Pa. Super. 2005) (rejecting appellant’s claim that he consumed

alcohol nearby his car when the officers found him slumped over the steering

wheel because there was no evidence to support such a proposition).

Judgment of sentence affirmed.

DATE: 10/13/2023

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