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Commonwealth v. Brotherson12/13/2005
ground-created a strong inference that it was an already intoxicated Appellant who had driven the car to that spot. Further distinguishing this case from Byers is the reasonable inference that Appellant's BAC of .118% more than three hours after his arrest could not have derived exclusively from the limited amount of beer available within his car.
10 Emerging from this collection of evidence is a clear illustration of the very type of public safety danger that the DUI statute was designed to combat: a drunken driver behind the wheel with engine running, having driven when he ought not and where he ought not. Accordingly, we conclude that the evidence established beyond a reasonable doubt that Appellant was operating or in actual physical control of his car while intoxicated for purposes of the former DUI statute.
11 Appellant's second argument on appeal is that the playground/basketball court was not a highway or traffic way as contemplated by the DUI statute. We find this argument waived, for the trial transcript reveals that Appellant never raised this defense at his trial. See Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278 (Pa. Super. 2004) (en banc) (reiterating that issues not raised before the trial court are waived and cannot be raised for the first time on appeal).
12 Judgment of sentence is affirmed.
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