Com. v. Foster, J.

J-A11017-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JAMAR FOSTER :

:

Appellant : No. 619 WDA 2022

Appeal from the Judgment of Sentence Entered January 5, 2022

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

No(s): CP-02-CR-0013992-2019

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 17, 2023

Appellant, Jamar Foster, appeals from the judgment of sentence of 60

days’ incarceration, a concurrent term of 6 months’ probation, and $1,500 in

fines, imposed after he was convicted of two counts of driving under the

influence of alcohol (DUI), 75 Pa.C.S. §§ 3801(a)(1) (general impairment)

and 3801(c) (highest rate of alcohol), and driving while operating privilege is

suspended or revoked, 75 Pa.C.S. § 1453(b)(1.1)(i). After careful review, we

affirm.

The trial court summarized the facts underlying Appellant’s convictions,

as follows:

At approximately 2:00 a.m. on September 17, 2019, Pittsburgh

Police Officer Nathan Powers was on duty when he received a

ShotSpotter1 Notification of shots fired near 1439 Hoffman Street

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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in the City of Pittsburgh.[1] While Officer Powers was en route to

the area, a second ShotSpotter Notification was received that

indicated four (4) additional rounds of gunfire had been

discharged in the area. As Officer Powers approached the area,

he observed a vehicle parked, with the headlights on, … in an area

with no other parked cars. Officer Powers observed [Appellant] in

the driver’s seat of the vehicle, and a female in the passenger’s

seat.[2] Officer Powers turned on his lights and began to initiate

an investigatory stop of the vehicle. [Appellant] then exited the

driver’s side of the vehicle, with his back to Officer Powers, and

proceeded to walk towards a private residence.[3] Multiple units

arrived on the scene as backup. Officer Powers handcuffed

[Appellant] for failing to comply with his orders.[4] At that time,

Officer Powers noticed a strong smell of alcohol, and that his eyes

were watery and glassy. Officer Powers then Mirandized[5]

[Appellant] and took him into custody. While [Appellant] was in

the back of the police car, it was clear to Officer Powers that

[Appellant] was highly intoxicated. Officer Powers checked

[Appellant’s] driver’s license, and it was determined that

[Appellant’s] license was DUI suspended.

1 ShotSpotter is a sensory system that uses multiple sensors

to pick up a suspected gunshot to triangulate the gunshot

____________________________________________

1Officer Powers testified that that location was known as a high-crime area.

N.T. Suppression Hearing, 10/1/20, at 8.

2The woman was later identified as Appellant’s girlfriend, Tiffany Towns.

See N.T. Trial, 7/15/21, at 55.

3 Officer Powers explained that, as Appellant walked away, he got out of his

police vehicle and “ordered [Appellant] to return to the street so we could

conduct an investigation.” N.T. Suppression Hearing at 7.

4 Specifically, the officer testified that “[w]e ordered [Appellant] multiple times

to return to the street. … [Appellant] refused to comply with the officers and

continued to walk away, at which point we feared that he was armed…. We

drew our guns and ordered him at gunpoint, at which point he finally got down

on the ground, and we had to forcefully handcuff him to get him under

compliance.” N.T. Suppression Hearing at 8.

5 Miranda v. Arizona, 384 U.S. 436 (1966).

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location from a minimum of three (3) sensors and send a

dispatch to the appropriate Pittsburgh Police zone station.

While Officer Powers investigated the firearm issue, he entered

the vehicle. He observed that there was condensation on the

interior of the windshield of the vehicle, consistent with the air

conditioning having been on in the car, and that the engine was

hot to touch. Based on Officer Powers[’] observations, training,

and experience as a police officer, he concluded that the vehicle

had recently been driven. Furthermore, Officer Powers

determined that [Appellant] had been driving the vehicle, based

on his observation of [Appellant’s] leaving the driver’s seat when

he arrived on the scene, that the air conditioning was on and

running, and that the vehicle’s headlights were on when he

arrived. Officer Powers administered the [horizontal gaze

nystagmus] test, which showed signs that [Appellant] was

impaired. After that, [Appellant] was transferred … for an

[I]ntoxilyzer [breath] test…, which showed that [Appellant’s blood

alcohol content] was .200, approximately one hour and twenty-

two minutes after [Appellant] was taken into custody.

Trial Court Opinion (TCO), 7/19/22, at 1-3 (unnumbered).

Appellant was charged with the above-stated offenses and, on April 9,

2020, he filed a motion to suppress. Therein, Appellant stated that “[a]

seizure occurred when Officer Powers activated the lights of his police vehicle

and ordered [Appellant] to return to the street.” Motion to Suppress, 4/9/20,

at 3 ¶ 6. Appellant argued that Officer Powers did not have reasonable

suspicion at that point to support the investigative detention of Appellant and,

thus, it was illegal. Id. at 3 ¶ 7. On October 1, 2020, a hearing was

conducted, at which Officer Powers was the sole witness. On October 5, 2020,

the court entered an order denying Appellant’s motion to suppress.6 He

____________________________________________

6That order is dated October 1, 2020, but it was not filed until October 5,

2020.

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proceeded to a non-jury trial on July 15, 2021. At the conclusion thereof, the

court convicted him of the above-stated offenses. On January 5, 2021, the

court sentenced Appellant as set forth, supra.

Appellant filed a timely post-sentence motion. On May 4, 2022, the trial

court entered an order denying the post-sentence motion, and Appellant filed

his notice of appeal on May 19, 2022.7 Appellant thereafter complied with the

____________________________________________

7 The court’s order denying Appellant’s post-sentence motion was entered 129

days after that motion was filed. Pursuant to Pennsylvania Rule of Criminal

Procedure 720(B)(3)(a), a trial court “shall decide the post-sentence motion

… within 120 days of the filing of the motion.” Pa.R.Crim.P. 720(B)(3)(a). If

the trial court fails to rule on the motion within 120 days, it will be deemed

denied by operation of law. Id. “When a post-sentence motion is denied by

operation of law, the clerk of courts shall forthwith enter an order on behalf

of the court … that the post[-] sentence motion is deemed denied.” Id. at

720(B)(3)(c). When neither the trial court nor the clerk of courts enters an

order denying an appellant’s post-sentence motion within the 120-day period,

this Court has held that a breakdown in the court’s operation has occurred.

Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (holding

“where the clerk of courts does not enter an order indicating that the post-

sentence motion is denied by operation of law … a breakdown in the court

system has occurred…”); Commonwealth v. Braykovich, 664 A.2d 133,

137-38 (Pa. Super. 1995) (finding a breakdown where neither the trial court

nor the clerk of courts issued an order denying the defendant’s post sentence

motion within 120 days.). Further, where a breakdown occurs, this Court has

found that an appeal filed within 30 days of an order filed outside the 120-day

window is timely. See Braykovich, 664 A.2d at 135-38 (finding the

appellant’s appeal timely where although the trial court denied the appellant’s

post-sentence motion months after the 120 days had passed, the appeal was

still filed within 30 days of said denial).

Here, we conclude that a breakdown in the operations of the court

occurred, as the trial court did not rule on Appellant’s post-sentence motion

until nine days after the period set forth in Pa.R.Crim.P. 720(B)(3)(a) had

passed. Nevertheless, because Appellant filed his instant notice of appeal

within thirty days of the trial court’s order denying his post-sentence motion,

we conclude that his appeal was timely filed.

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court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and the court filed its responsive Rule 1925(a)

opinion on July 19, 2022.

Herein, Appellant raises three issues for our review:

I. Whether the [t]rial [c]ourt erred in denying suppression

where Officer Powers ordered [Appellant] at gunpoint to

stop and return to the officer’s position but, at the precise

moment of seizure, the officer lacked reasonable suspicion,

based on specific and articulable facts, to believe that

[Appellant] was engaged in criminal activity?

II. Whether the [t]rial [c]ourt erred and abused its discretion

in admitting the testimony elicited by the Commonwealth

from … Officer … Powers on matters which required

specialized knowledge and therefore was inadmissible

because he was not qualified as an expert?

III. Whether the [t]rial [c]ourt erred in denying [d]efense

motions for judgment of acquittal (and therefore challenges

to the sufficiency of the evidence) where the Commonwealth

failed to prove the material elements of all charges in this

matter requiring [Appellant] be driving, operating, or in

actual physical control of the motor vehicle?

Appellant’s Brief at 12.

Appellant first challenges the trial court’s denial of his motion to

suppress, contending that Officer Powers lacked reasonable suspicion to

conduct the investigative detention in this case.

Our standard of review in addressing a challenge to the

denial of a suppression motion is limited to determining

whether the suppression court’s factual findings are

supported by the record and whether the legal conclusions

drawn from those facts are correct. Because the

Commonwealth prevailed before the suppression court, we

may consider only the evidence of the Commonwealth and

so much of the evidence for the defense as remains

uncontradicted when read in the context of the record as a

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whole. Where the suppression court’s factual findings are

supported by the record, we are bound by these findings

and may reverse only if the court’s legal conclusions are

erroneous. Where, as here, the appeal of the determination

of the suppression court turns on allegations of legal error,

the suppression court’s legal conclusions are not binding on

an appellate court, whose duty it is to determine if the

suppression court properly applied the law to the facts.

Thus, the conclusions of law of the courts below are subject

to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super.

2012) (quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–

62 (Pa. Super. 2012)).

Fourth Amendment jurisprudence has led to the

development of three categories of interactions between

citizens and the police. The first of these is a “mere

encounter” (or request for information) which need not be

supported by any level of suspicion, but carries no official

compulsion to stop or to respond. See Florida v. Royer,

460 U.S. 491 … (1983); Florida v. Bostick, 501 U.S. 429,

… (1991). The second, an “investigative detention” must be

supported by a reasonable suspicion; it subjects a suspect

to a stop and a period of detention, but does not involve

such coercive conditions as to constitute the functional

equivalent of an arrest. See Berkemer v. McCarty, 468

U.S. 420 … (1984); Terry v. Ohio, 392 U.S. 1 … (1968).

Finally, an arrest or “custodial detention” must be supported

by probable cause. See Dunaway v. New York, 442 U.S.

200 … (1979); Commonwealth v. Rodriquez, … 614 A.2d

1378 ([Pa.] 1992).

Commonwealth v. Ellis, … 662 A.2d 1043, 1047–48 ([Pa.]

1995) (footnote omitted).

A police officer may detain an individual in order to conduct

an investigation if that officer reasonably suspects that the

individual is engaging in criminal conduct. Commonwealth

v. Cook, … 735 A.2d 673, 676 ([Pa.] 1999). “This standard,

less stringent than probable cause, is commonly known as

reasonable suspicion.” Id. In order to determine whether

the police officer had reasonable suspicion, the totality of

the circumstances must be considered. In re D.M., … 781

A.2d 1161, 1163 ([Pa.] 2001). In making this

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determination, we must give “due weight ... to the specific

reasonable inferences [the police officer] is entitled to draw

from the facts in light of his experience.” Cook, 735 A.2d

at 676 (quoting Terry..., 392 U.S. [at] 27…). Also, the

totality of the circumstances test does not limit our

inquiry to an examination of only those facts that

clearly indicate criminal conduct. Rather, “[e]ven a

combination of innocent facts, when taken together, may

warrant further investigation by the police officer.” Cook,

735 A.2d at 676.

Commonwealth v. Rogers, … 849 A.2d 1185, 1189 ([Pa.] 2004)

(emphasis added).

Commonwealth v. Raglin, 178 A.3d 868, 871–72 (Pa. Super. 2018).

Instantly, the parties agree that Appellant was subjected to an

investigative detention when Officer Powers exited his police cruiser and

ordered Appellant to return to Hoffman Street.8 Appellant contends that

Officer Powers lacked reasonable suspicion to conduct that investigative

detention, explaining:

____________________________________________

8 According to Appellant, the detention began “when Officer Powers exited his

police cruiser, drew his service weapon, and then ordered [Appellant] to ‘stop’

and then to ‘come back here.’” Appellant’s Brief at 52. While “the

Commonwealth agrees that [Appellant] had indeed been seized when the

officer ordered him to return to Hoffman Street,” it notes that “the officer did

not draw his gun prior to ordering [Appellant] back to Hoffman Street[,]” and

that “Officer Powers did not tell Foster to ‘stop[,]’” but, instead, he told him

to “come back to the street” to talk to him.” Commonwealth’s Brief at 15

(citing N.T. Suppression Hearing at 7 (Officer Powers’ stating that he “ordered

[Appellant] to return to the street so [he] could conduct an investigation”);

id. at 8 (Officer Powers’ testifying that he drew his gun after ordering

Appellant “multiple times to return to the street” and Appellant “refused to

comply”); id. at 15 (the officer’s testifying that he “told [Appellant] to come

back to the street” to talk to him)). The record supports the Commonwealth’s

corrections to Appellant’s rendition of the events. We accept the parties’

agreement that Appellant was seized when Officer Powers exited his police

vehicle and ordered Appellant to return to the street to talk to the officer.

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At the time the seizure of [Appellant] occurred, Officer Powers had

access to the following specific and articulable facts: (1) there had

been multiple ShotSpotter notifications in the general area where

[Appellant] was eventually located, (2) those shots occurred

rapidly in time and shortly before Officer Powers arrived at the

scene, (3) that ShotSpotter is sometimes inaccurate (including

being whole addresses off target), (4) that ShotSpotter is an audio

only system providing no visual observations of any activity before

police arrival, (5) that no crime of any kind was observed or

reported at any time, (6) that the area where the shots occurred

is residential with multiple houses nearby, (7) that the area is a

high crime area, (8) that the area was mostly dark in the early

hours of the morning, (9) that [Appellant] did not run or in any

way flee from police, (10) that no observations of anything

resembling a firearm were seen on [Appellant], (11) that

[Appellant] was not carrying any items in which he could conceal

a firearm, (12) that [Appellant] was entirely cooperative with

police, (13) and that no commotion or obvious signs of distress or

criminal activity were present at the scene from either [Appellant]

or Ms. Towns, and no property damage of any kind, consistent

with the discharge of a firearm, was observed.

Appellant’s Brief at 55-56.

In sum, Appellant claims that,

[a]t the time this seizure took place, the only facts that Officer

Powers could have possibly relied upon were the spatial and

temporal proximity of [Appellant] to the ShotSpotter alert.

Because there are no other factors that could be claimed to justify

reasonable suspicion, the reliability and credibility of the

ShotSpotter system must be analyzed.

Id. at 56. Appellant then goes on to contend that “[a] ShotSpotter alert is

akin to an anonymous tip and must be considered with more caution than

known witness tips or observations.” Id. He stresses that ShotSpotter “is not

free from creating a misperception for police responding to an alert[,]” as it is

“an audio only system, [and] there is no video means of recording what would

trigger an alert or describing potential suspects for police to then corroborate

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through investigation.” Id. at 57. Thus, Appellant posits that the ShotSpotter

technology is even “less reliable than an anonymous tip in that the danger for

misperception of provided data is just as high as with a human witness and,

even worse, [it] cannot provide any description of potential suspects.” Id. at

58. Consequently, Appellant insists that police responding to a ShotSpotter

alert “must investigate further before they have reasonable suspicion to stop

a citizen.” Id. Because, here, Officer Powers did not see anyone “in distress

and nothing that would indicate a shooting took place[,]” such as “bullet

strikes in the ground on his approach, [or] … bullet holes in the vehicle[,]”

and Appellant did not flee, “reach about his person[,]” or appear to be in

possession of any items, Appellant contends that Officer Powers lacked

reasonable suspicion to detain him. Id. at 59-60.

In response, the Commonwealth contends that this Court has already

“addressed and deemed to be faulty” an argument that ShotSpotter is akin to

an anonymous tip. Commonwealth’s Brief at 17 (citing in Commonwealth

v. Raglin, 178 A.3d 868 (Pa. Super. 2018)). Specifically, in Raglin, an officer

received a report from ShotSpotter that a single gunshot was detected in a

high crime area. Id. at 870. A different officer was dispatched to the scene

and arrived there less than a minute after the detected shot. Id. The officer

observed Raglin and another man in the street, very close to the location of

the shot. Id. As the officer approached, the two men separated and drove

away in different vehicles. Id. The officer followed Raglin’s vehicle, which

eventually parked. Id. As Raglin attempted to exit the car, the officer ordered

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him to place his hands on the trunk and the officer then patted Raglin down.

Id. When another officer approached Raglin’s car, he observed a handgun in

plain view inside the vehicle. Id. Raglin was subsequently convicted of

various crimes, including possession of a firearm without a license.

On appeal, Raglin claimed that the police lacked reasonable suspicion to

conduct an investigative detention, arguing that the ShotSpotter technology

is “almost the equivalent of an anonymous tip, but … that it is less reliable

than an anonymous tip, because it is incapable of providing a description of

potential suspects that can be confirmed by police as the law requires.” Id.

at 872 (citation and internal quotation marks omitted). “Thus, [Raglin]

argue[d] that the ‘ShotSpotter’ technology should be treated like an

uncorroborated anonymous tip, which, by itself, does not justify a Terry stop.”

Id. (some spacing altered) (citing Commonwealth v. Jackson, 698 A.2d

571, 54 (Pa. 1997) (recognizing that “a Terry stop may be made on the basis

of an anonymous tip, [but only when] the tip is sufficiently corroborated by

independent police work to give rise to a reasonable belief that the tip was

correct”)).

In assessing Raglin’s arguments, we initially noted that “[t]he risks of

unreliability from anonymous tips appear more significant than those

presented by the ‘ShotSpotter’ technology.” Id. at 873 (some spacing

altered; emphasis added). We reasoned that, “[e]ven if the operator of the

technology provides false information, or simply makes a mistake in

interpreting its results, that person rarely, if ever, will be anonymous.” Id.

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Ultimately, the Raglin panel declined to offer “a definitive ruling on the degree

of reliability of the “ShotSpotter” technology[,]” as the Terry stop in that case

“was based on more than just the data obtained from that system.” Id.

(some spacing altered). Specifically, the totality of the circumstances

included:

1) the data received from the “ShotSpotter” itself, which

established that a shot had been fired, indicating the likely

occurrence of a crime; 2) [Raglin’s] close proximity, spatially and

temporally, to the location identified by the technology; 3)

[Raglin’s] evasive behavior when the police arrived[, including his

separating from the other male present and entering different

vehicles;] 4) [Raglin’s] strange act of jumping out of his vehicle

just as [the officer] activated his lights; and 5) the occurrence of

these events in a high crime area.

Id. We held that, although “[n]one of these circumstances, by themselves,

conclusively demonstrate[d] that [Raglin] was engaged in criminal activity[,]

… in combination, they warranted further investigation by” the officers. Id.

The Commonwealth argues that the circumstances in the instant case

demonstrate, even more definitively than in Raglin, that Officer Powers

possessed reasonable suspicion to detain Appellant. It explains:

[A]s set forth previously, ShotSpotter detected—in two separate

reports—that a total of five shots had been fired, which, the

Commonwealth believes, would allow for even less probability of

error than in an instance such as Raglin where only a single shot

was detected. A mere 10 to 15 seconds after the second

ShotSpotter notification, [Appellant] and his companion were

found in a vehicle at the location where the shots were said to

have been fired. Importantly, the two of them were the only

people on the street at that time. Furthermore, like the defendant

in Raglin, [Appellant] was seemingly behaving evasively, exiting

his vehicle and walking away from the officer as the police vehicle

arrived at the scene.11 And, lastly, by [Appellant’s] own

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admission, the location in question was a high crime area at 2

a.m. (see Brief for Appellant, at p. 55). The Commonwealth

would respectfully submit that, although no[t] one of these

circumstances [alone] may have conclusively demonstrated that

[Appellant] was engaged in criminal activity, the combination of

them certainly permitted Officer Powers to reasonably suspect

that [Appellant] was involved in criminal behavior such that

further investigation was warranted. As a result, [the trial court]

cannot be said to have erred in denying [Appellant’s] motion to

suppress. Raglin, supra.

11At the same time, his companion appeared to be grabbing

for things in the front-passenger seat. [See N.T.

Suppression Hearing at 8.]

Commonwealth’s Brief at 20-21 (footnote omitted).9

We agree with the Commonwealth. The totality of the circumstances in

this case were at least equivalent to, if not more significant, than those in

Raglin in terms of demonstrating reasonable suspicion to validate the

____________________________________________

9 The Commonwealth also notes that,

as additional support for his contention that Officer Powers lacked

reasonable suspicion of criminal activity, [Appellant] asserts that

he “was entirely cooperative with police[,] … stop[ping] when he

was ordered to[,]” and that, furthermore, the officer did not

observe “any unnatural bulge” indicative of a weapon (see Brief

for Appellant, at pp. 56, 60). But, as established above,

[Appellant] was certainly not cooperative with the police, as

evidenced by the fact that Officer Powers had to order him

numerous times to come back to the street and needed to pull out

his gun in order to get [Appellant] to obey his command.

Furthermore, the transcript makes clear that it is of no moment

that Officer Powers did not see any indication of a firearm on

[Appellant’s] person, as the officer testified that he would not have

been able to observe the bulge of a gun in the darkness from the

distance that he and [Appellant] were apart (see [N.T.

Suppression Hearing at] 20). Thus, neither line of argument does

[Appellant] any good.

Commonwealth’s Brief at 21 n.12.

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investigative detention. Thus, as in Raglin, we need not decide whether

Appellant is correct that a ShotSpotter alert is similar in reliability to an

anonymous tip. Instead, it is clear that the trial court did not err in

determining that Officer Powers possessed reasonable suspicion to detain

Appellant.

Next, Appellant contends that the trial court erred by admitting expert

testimony by Officer Powers when he was not qualified to provide such

testimony. Specifically, Appellant takes issue with Officer Powers’ testimony

concerning the “vehicle’s air conditioning system, the condensation produced

from it (or lack thereof), the condensation on the interior of the vehicle, and

the resulting inference drawn from that evidence.” Appellant’s Brief at 65.

According to Appellant, “[t]he way an air conditioning system works in a motor

vehicle is not something that is known to the average layperson.” Id. While

acknowledging that “Pennsylvania courts have generally agreed that operation

(i.e.[,] driving) of a vehicle is something that is done or seen so often that lay

persons can testify about it[,]” Appellant contends that

Officer Powers testified to more than the typical operation of a

motor vehicle. He instead testified about the air conditioning

system in the incident vehicle and that air conditioning systems

produce condensation which leaks from motor vehicles when in

use. He also testified that condensation on the inner windshield

of the vehicle meant that the air conditioning had been on for a

“very long time,” and that no visible condensation under the motor

vehicle meant that it had to have been recently moved. This

testimony was introduced by the Commonwealth to bolster the

assertion that the vehicle had recently been moved.

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Id. at 66. Appellant insists that this testimony was prejudicial, as it was relied

upon by the trial court in concluding that the vehicle had recently been moved

and, therefore, Appellant had driven it while intoxicated and while his license

was revoked.

We need not determine whether the court erroneously permitted Officer

Powers to offer expert testimony, as we agree with the Commonwealth that

any error in admitting that testimony was harmless.

Harmless error exists if the Commonwealth proves that the error

did not prejudice [the a]ppellant or that any prejudice was de

minimis, that the erroneously admitted evidence was cumulative

of other properly admitted evidence which was substantially

similar or the same as the erroneous evidence, or that the

properly admitted and uncontradicted evidence of guilt was so

overwhelming that the prejudicial effect of any error was so

insignificant that it could not have contributed to the verdict.

Commonwealth v. Lam, 684 A.2d 153, 162 (Pa. Super. 1996).

Instantly, the Commonwealth contends:

[Appellant] took the stand in his own defense and testified that he

had not driven the vehicle that Officer Powers had come upon on

the night in question but, rather, his female companion, Tiffany

Towns, had (see [N.T. Trial at] 55-56).14 Given the

acknowledgement by [Appellant] that the car had been driven just

prior to Officer Powers’ arrival, the admission of the officer’s

aforementioned testimony regarding the air conditioning could

have had no impact on the resolution of [Appellant’s] case, as the

question of whether or not the vehicle had been recently driven

was not in dispute. Because [Appellant] admitted during his

testimony that the vehicle had indeed been driven to that spot

that night—[Appellant’s] only contention was that he had not been

the one who had driven it—the testimony about which [Appellant]

now complains is moot and clearly could not have prejudiced him.

14In [Appellant’s] version of events, the vehicle belonged to

his mother and, after Ms. Towns had driven the car to his

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mother’s residence—the location at which Officer Powers

came into contact with it—the plan was for his mother to

drive both of them to Ms. Towns’ house (see [N.T. Trial at]

55-56).

Moreover, even if [Appellant’s] testimony were put aside, the

introduction of the officer’s testimony regarding the air

conditioning would still have been harmless because Officer

Powers also testified that the vehicle’s “engine was hot to the

touch” ([N.T. Trial at] 16; see [also N.T. Trial at] 24). This Court

has stated that the feel of heat from the hood of a car itself

indicates that the car had recently been driven. See

Commonwealth v. Wilson, 660 A.2d 105, 107 (Pa. Super.

1995). Thus, because the evidence of the air conditioning being

on and the absence of condensation underneath [Appellant’s]

vehicle suggested the very same thing as did the properly

admitted evidence of the warmth of the vehicle’s engine, any error

in the admission of the former would have been harmless for this

reason as well. Lam, supra.

Commonwealth’s Brief at 25-27.

We are convinced by the Commonwealth’s argument, and our

independent review of the record, that Appellant was not prejudiced by the

introduction of Officer Powers’ at-issue testimony. Accordingly, even if that

testimony was improper, no relief is due.

Finally, Appellant challenges the sufficiency of the evidence to sustain

his convictions. Initially, we observe that,

“[w]hether the evidence was sufficient to sustain the charge

presents a question of law.” Commonwealth v. Toritto, 67 A.3d

29 (Pa. Super. 2013) (en banc). Our standard of review is de

novo, and our scope of review is plenary. Commonwealth v.

Walls, 144 A.3d 926 (Pa. Super. 2016). In conducting our

inquiry, we examine[,]

whether the evidence at trial, and all reasonable inferences

derived therefrom, when viewed in the light most favorable

to the Commonwealth as verdict-winner, [is] sufficient to

establish all elements of the offense beyond a reasonable

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doubt. We may not weigh the evidence or substitute our

judgment for that of the fact-finder. Additionally, the

evidence at trial need not preclude every possibility of

innocence, and the fact-finder is free to resolve any doubts

regarding a defendant’s guilt 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. When

evaluating the credibility and weight of the evidence, the

fact-finder is free to believe all, part or none of the evidence.

For purposes of our review under these principles, we must

review the entire record and consider all of the evidence

introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.

2014) (quotation omitted).

Commonwealth v. Rojas-Rolon, 256 A.3d 432, 436 (Pa. Super. 2021),

appeal denied, 285 A.3d 879 (Pa. 2022).

Under both Appellant’s convictions for DUI (general impairment and

highest rate of alcohol), the Commonwealth was required to prove that

Appellant drove, operated, or was in actual physical control of the movement

of his vehicle. See 75 Pa.C.S. § 3802(a)(1), (c). Additionally, for Appellant’s

conviction of driving while operating privileges are suspended or revoked, the

Commonwealth was also required to prove that he drove his vehicle. See 75

Pa.C.S. § 1543(b)(i). Thus, as Appellant observes, “[a]cross all of these

charges is a single common element requiring driving, operation, or [actual

physical control] of either the machinery of the motor vehicle or the

management of the vehicle’s movement, but not evidence that the vehicle

was in motion.” Appellant’s Brief at 73 (citing Commonwealth v.

Brotherson, 888 A.2d 901, 904 (Pa. Super. 2005) (“The term ‘operate’

requires evidence of actual physical control of either the machinery of the

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motor vehicle or the management of the vehicle’s movement, but not evidence

that the vehicle was in motion.”)).

Appellant contends that the Commonwealth failed to prove this

‘common element’ of the three offenses for which he was convicted. Focusing

on the ‘actual physical control’ element, Appellant stresses that no one

observed the vehicle in motion at any point, no one saw Appellant driving the

vehicle, the vehicle’s engine was not running, the keys were not in the ignition,

and the vehicle was never in gear. He also points out that no one saw his

hands on the steering wheel or gear shifter, or his feet on the brake or the

gas pedals. He also was not alone in the vehicle, and Ms. Towns actually

possessed the keys to the car. Appellant argues that “no witness could testify

as to the length of time that the vehicle was in the place where it was

discovered[,]” and, even if the vehicle had been recently moved, there was

“no way to establish when it had been moved, or where it had been moved

from.” Appellant’s Brief at 75-76. He points out that Officer Powers admitted

“that it was entirely possible that Ms. Towns (or someone else) may have

driven the vehicle to [Appellant’s] residence.” Id. at 76.

Moreover, Appellant claims that the location of the vehicle was not

suspicious, as it was parked at his house. In Brotherson, we acknowledged

that “[i]n a majority of cases, the suspect location of the vehicle, which

supports an inference that it was driven, is a key factor in a finding of actual

control.” Brotherson, 888 A.2d at 905 (citations omitted). There, we

concluded that the “highly inappropriate location” of Brotherson’s car, which

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was found “on the basketball court of a gated children’s playground[,] created

a strong inference that it was an already[-]intoxicated Brotherson who had

driven the car to that spot.” Id. See also Commonwealth v. Dirosa, 249

A.3d 586 (Pa. Super. 2021), appeal denied, 261 A.3d 1033 (Pa. 2021) (finding

the evidence sufficient to support Dirosa’s DUI conviction where officers

discovered Dirosa asleep in the driver’s seat of his vehicle, which was parked

outside a Wawa gas station at approximately 2:30 a.m. in between the clearly

marked lines of the handicap parking spaces in front of the store);

Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super. 2010) (finding

sufficient evidence of actual physical control where officers found Toland

parked outside a store and asleep in the driver’s seat of his vehicle with the

motor running and headlights illuminated). “Conversely, where the location

of a car supported the inference that it was not driven, this Court rejected the

inference of actual physical control.” Brotherson, 888 A.2d at 905 (citing

Commonwealth v. Byers, 650 A.2d 468, 469 (Pa. Super. 1994), abrogated

on other grounds by Commonwealth v. Wolen, 685 A.2d 1384 (Pa. 1996))

(concluding that there was no actual physical control even though Byers was

found asleep behind the wheel of his running car, because the car had not

been moved from the parking lot of the bar where Byers became intoxicated)).

Appellant here contends that, unlike Brotherson, Dirosa, and Toland,

the vehicle engine was not running, though the headlights were

on. [Appellant] was not slumped over in the driver’s seat asleep

or unconscious. The incident vehicle was not located in some

inappropriate location such as on a children’s basketball court,

parked outside the lines of parking spaces at different

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establishments, or located at a place which might be called a

“temporary destination.” Here, the vehicle was seen in an

alleyway in the immediate vicinity of [Appellant’s] residence[,]

which is a “final destination.” It was parked parallel to both the

alleyway itself and a chain link fence on the opposite side of the

pavement. Further, [Appellant] was not alone at the scene or in

the vehicle itself; he was instead in the company of his girlfriend

who had the vehicle keys on her person. [Appellant] did not have

any sort of control of the actual machinery of the vehicle itself in

that his foot wasn’t on the gas or brake, the vehicle was in park,

the keys were not in the ignition, and [Appellant’s] hands were

not on the steering wheel. In short, [Appellant] had no ability to

operate the vehicle absent the keys, and he was not operating any

machinery in the vehicle to restrain its movement in any way.

Similar to Byers, no one observed [Appellant] drive the motor

vehicle at any time, no one observed the vehicle to have been

moved, and there was not a shred of evidence that would indicate

that [Appellant] had any intent to move or drive the vehicle in the

immediate future.

Appellant’s Brief at 81-82 (footnote and emphasis omitted). Appellant adds

that, even if we “infer that the vehicle itself was moved that evening based on

inferences that could be drawn from the testimony of Officer Powers, there is

simply no way to know when the vehicle was moved, where it was moved

from, who moved it, or how long the vehicle may have been in the location

where it was discovered.” Id. at 84-85. Thus, Appellant claims that he should

“be acquitted of all charges” because “[t]he evidence is insufficient to support

a finding that [he] was in [actual physical control] of the motor vehicle, and

any inference that he moved [the] vehicle that evening is speculative.” Id.

at 85.

We disagree.

Our precedent indicates that 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

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vehicle, and additional evidence showing that the defendant had

driven the vehicle. Commonwealth v. Woodruff, … 668 A.2d

1158, 1161 ([Pa. Super.] 1995). A determination of actual

physical control of a vehicle is based upon the totality of the

circumstances. The Commonwealth can establish through wholly

circumstantial evidence that a defendant was driving, operating

or in actual physical control of a motor vehicle.

Dirosa, 249 A.3d at 589 (some citations and internal quotation marks

omitted).

Here, the motor of Appellant’s vehicle was not running, and it was not

parked as suspiciously as in the cases discussed supra. However, Officer

Powers testified that Appellant’s vehicle was half on and half off the roadway,

parked in a “very narrow alleyway” where the officer, in his five years of patrol

experience, had “never seen anyone parked” before. N.T. Trial at 26, 27.

Moreover, there was additional evidence showing that Appellant had driven

the vehicle. Namely, Appellant was sitting in the driver’s seat of the car while

the headlights were on and the hood of the car was hot to the touch, indicating

that the vehicle had been recently driven. Although the keys were found in

Ms. Town’s possession, Officer Powers testified that as he approached the car,

he “observed [Ms. Town] grabbing items in the vehicle and putting them in

her purse.” Id. at 29. When asked whether Ms. Towns could have grabbed

the car keys at that time, the officer stated it was “[v]ery possible.” Id.

Appellant also testified that the vehicle belonged to his mother and that he

had borrowed the car from her. Id. at 55, 56. Additionally, Appellant’s

evasive act of getting out of the driver’s seat and walking away from the car

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as soon as he saw Officer Powers’ approaching is indicative of his

consciousness of guilt.

Finally, we agree with the Commonwealth that Byers is distinguishable.

It explains:

[T]here, the defendant, drunk and asleep, was found in the

driver’s seat of a vehicle, as opposed to leaving it, and,

furthermore, the vehicle was parked in the parking lot of a lounge.

[Byers,] 650 A.2d at 468-69. Thus, it was certainly possible that

the defendant in that case had consumed alcohol inside of the

establishment prior to entering his car without ever having driven

it in an intoxicated state. The same does not hold true in the

instant matter, as there was no similar evidence that [Appellant]

had consumed alcohol near the location where the car was parked,

nor any plausible explanation as to why [he] was exiting the

driver’s seat of the car—the engine of which had recently been

running and the headlights of which [were] on—if he had not just

driven the vehicle to that location.

Commonwealth’s Brief at 33-34 (footnotes omitted).

In sum, when viewed in the light most favorable to the Commonwealth,

and giving it the benefit of all reasonable inferences, we conclude that the

evidence was sufficient to establish that Appellant had driven the at-issue

vehicle while intoxicated. Accordingly, no relief is due.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/17/2023

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