Com. v. Provance, D. (memorandum)

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J-S08037-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. DARYL PROVANCE, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1138 WDA 2015 Appeal from the Judgment of Sentence July 16, 2015 in the Court of Common Pleas of Fayette County, Criminal Division, No. CP-26-CR-0000500-2015 BEFORE: STABILE, DUBOW and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 11, 2016 Daryl Provance (“Provance”) appeals from the judgment of sentence imposed following his convictions of aggravated assault, recklessly endangering another person, criminal mischief, and driving under influence of alcohol or controlled substance (“DUI”). 1 We affirm. The trial court set forth the underlying relevant facts in its Opinion. See Trial Court Opinion, 9/3/15, at 2-4. We adopt those facts for purposes of this appeal. See id. After a jury trial, the jury found Provance guilty of the abovementioned crimes. The trial court sentenced Provance to four to eight years in prison. Thereafter, Provance filed a timely Notice of Appeal and a timely court-ordered Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement of Matters Complained of on Appeal. 1 18 Pa.C.S.A. §§ 2702(a)(4); 2705; 3304(a)(5); 75 Pa.C.S.A. § 3802(a)(1). J-S08037-16 On appeal, Provance raises the following question for our review: “Was the evidence legally and factually insufficient to show that [Provance] committed the crimes of aggravated assault, recklessly endangering another person, criminal mischief[,] and DUI beyond a reasonable doubt[?]” Brief for Appellant at 7 (capitalization omitted). Provance argues that the Commonwealth witnesses failed to identify him as the driver of the alleged vehicle, or that Provance’s vehicle had caused the damage. Id. at 10, 13-14. Provance also asserts that the Commonwealth failed to prove that it was practically certain that death or serious bodily injury would result from his conduct. Id. at 14. Additionally, Provance contends that the Commonwealth failed to prove that he operated the alleged vehicle while incapable of safely driving, because the State Trooper never observed Provance driving the vehicle. Id. at 10, 14-15. Lastly, Provance argues that the record is devoid of any direct or circumstantial evidence to show that he had any intent to cause harm to the victims. Id. at 16. We apply the following standard of review when considering a challenge to the sufficiency of the evidence: 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 the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need -2- J-S08037-16 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 finder 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation omitted). The Pennsylvania Crimes Code defines the crime of aggravated assault, in relevant part, as follows: (4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon[.] 18 Pa.C.S.A. § 2702(a)(4). The Pennsylvania Crimes Code defines deadly weapon as follows: Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury. Id. § 2301. This Court has recognized that an automobile, when used in a certain manner, may become a deadly weapon. Commonwealth v. Thomas, 656 A.2d 514, 519 (Pa. Super. 1995). The Pennsylvania Crimes Code defines recklessly endangering another person as follows: -3- J-S08037-16 A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. 18 Pa.C.S.A. § 2705. The Pennsylvania Crimes Code defines criminal mischief, in relevant part, as follows: (5) intentionally another[.] damages real or personal property of Id. § 3304(a)(5). The Pennsylvania Vehicle Code defines DUI as follows: (a) General impairment.— (1) An 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). The term “operate” requires evidence of actual physical control of the vehicle to be determined based upon the totality of the circumstances. 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 vehicle, and additional evidence showing that the defendant had driven the vehicle. The Commonwealth can establish that a defendant had “actual physical control” of a vehicle through wholly circumstantial evidence. Furthermore, a police officer may utilize both his experience and personal observations to render an opinion as to whether a person is intoxicated. Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (internal citations and some quotation marks omitted). -4- J-S08037-16 Here, the trial court addressed Provance’s claims and correctly determined that they are without merit. See Trial Court Opinion, 9/3/15, at 4-6. The credible evidence supports Provance’s convictions of the above- mentioned crimes. See Melvin, 123 A.3d at 40. Thus, we adopt the sound reasoning of the trial court for the purpose of this appeal. See Trial Court Opinion, 9/3/15, at 4-6. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 2/11/2016 -5- Circulated 01/15/2016 10:57 AM

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