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Commonwealth v. Brotherson12/13/2005
1 This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County, which convicted Appellant of driving under the influence of alcohol ("DUI") and sentenced him that day to a mandatory minimum sentence of 48 hours' to 23 months' imprisonment. Appellant raises a challenge to the sufficiency of the evidence. We affirm.
2 At approximately 10:45 p.m. on March 24, 2001, Officer Jeffrey Trobes of the Philadelphia Police Department was on routine patrol of a closed playground at 3001 West Lehigh Avenue when he saw a car parked on the playground's basketball court. According to the officer, access to the park was located at the park's 29th Street entry gate, which was routinely closed at dusk and was, in fact, closed when the officer observed the car in question. The only other way the car could have entered the park is if it had driven across a grass lot and onto the basketball court, but there was no testimony as to tire tracks through the grass or mud on the car.
3 The officer approached the car to discover that the engine was running and a driver, Appellant, was asleep in the driver's seat. From his vantage point, the officer saw an "open" 40 ounce bottle of malt liquor in the car. Officer Trobes awoke Appellant, whom the officer noticed to have glassy eyes and a slow response to questions. Based on his observations, the officer administered sobriety tests, which Appellant failed. Officer Trobes therefore arrested Appellant and transported him for BAC testing, which showed Appellant to have a .118% BAC over three hours after the arrest. Accordingly, Appellant was charged with DUI.
4 Adjudged guilty in Municipal Court, Appellant appealed for a trial de novo before the Court of Common Pleas. At trial de novo, counsel for Appellant stipulated to the admission of both BAC evidence and Officer Trobes's Municipal Court testimony before devoting the remainder of trial to legal argument that the evidence failed to establish that Appellant operated or actually controlled the vehicle while intoxicated. Simply because Appellant was behind the wheel with the engine running, defense counsel argued, did not rule out the possibility that it was a sober Appellant who drove into the park and began drinking only once there. The trial court disagreed, concluding that Appellant was operating the vehicle while intoxicated for purposes of the DUI statute. The court thus entered judgment of sentence as noted above. This timely appeal followed.
5 In his court-ordered Pa.R.A.P. 1925(b) concise statement, Appellant raised a challenge to the sufficiency of the evidence regarding "operation," which contended that it was "more likely that he defendant/appellant drove to the playground, parked and started drinking there," and regarding whether the playground/basketball court was a "highway" or "traffic way" for purposes of the DUI statute. The trial court has filed a Pa.R.A.P. 1925(a) opinion responding to both issues.
A challenge to the sufficiency of the evidence is a question of law, subject to plenary review. When reviewing a sufficiency of the evidence claim, the appellate court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the defendant's guilt to a mathematical certainty. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evid
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