J-S58023-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT WINOWITCH, JR.

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 387 WDA 2018

Appeal from the Judgment of Sentence February 15, 2018

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

No(s): CP-02-CR-0007108-2017

BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 16, 2018

Robert Winowitch, Jr. (Appellant) appeals from the judgment of 

sentence imposed after the trial court convicted him of driving under the 

influence of alcohol (DUI), public drunkenness, and related offenses.1 

Appellant challenges the sufficiency of the evidence. Upon review, we affirm.

Appellant was charged with a total of four offenses: DUI, public 

drunkenness, driving without a license, and driving while operating privilege 

is suspended or revoked.2 The case proceeded to a bench trial on November 

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1 75 Pa.C.S.A. § 3802(a)(1), 18 Pa.C.S.A. § 5505.

2 75 Pa.C.S.A. §§ 1501(a), 1543(b)(1). Appellant had two prior DUI 

convictions within the past ten years, and four total DUI convictions in his 

lifetime.
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20, 2017. The parties stipulated to the facts set forth in the affidavit of 

probable cause attached to the criminal complaint. In the affidavit, Officer 

Deppen stated that on April 29, 2017, he responded to a radio call about “a 

suspicious occupied vehicle . . . parked in the Boston ball field parking lot” in 

McKeesport, Pennsylvania.3 Affidavit of Probable Cause, 5/1/17. Officer 

Deppen averred:

While I was en route to the location Ofc Huschak approached the 

vehicle because he could see there was a person slumped over in 

the driver’s seat. Huschak was eventually able to awaken 

[Appellant] by repeatedly beating on the driver’s door window. 

With the driver’s door open Ofc Huschak could see that the 

dashboard lights were on. The vehicle was parked with the keys 

in the ignition and turned to on with the engine off. Ofc Huschak 

reached across the steering wheel to remove the keys from the 

ignition. At that time [Appellant] turned the ignition to off, 

removed the key, threw it on the passenger’s seat and denied they 

were in the ignition.

Upon my arrival I could see the vehicle was parked crooked about 

2/3 of the way into the parking stall and about half way over the 

line. As I approached the vehicle I could smell the odor of an 

alcoholic beverage on [Appellant’s] breath from about 4 feet 

away. [Appellant] had red glassy eyes and slurred speech. 

[Appellant] is also hard of hearing so I yelled while speaking with 

him. I asked [Appellant] to step out of the vehicle to perform field 

sobriety testing. When [Appellant] exited the vehicle he had 

difficulty maintaining his balance and would sway from side to side 

while standing still. 

Id.

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3 The record does not indicate the first name of either of the officers named

in the affidavit. Furthermore, the affidavit did not state the time of day the 

officers encountered Appellant.
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Officer Deppen administered the “horizontal gaze nystagmus,” “walk 

and turn,” and “one leg stand” field sobriety tests to Appellant, all of which 

indicated that Appellant was impaired. Id. Thereafter, Officer Deppen placed 

Appellant under arrest.

At trial, Appellant stipulated that two hours before the officer 

encountered him, he made a cash withdrawal inside Rich’s Parkside Den, “an 

establishment serving alcoholic beverages,” that was a short distance from his 

parked car. N.T. Trial, 11/20/17, at 10-11. Appellant did not testify, but 

presented photographs of the parking lot. Id. at 9. His attorney argued that 

because the car’s engine was not on, Appellant did not have actual physical 

control over the movement of the vehicle for purposes of the DUI statute. Id.

at 10-33. The court rejected this argument, and found that Appellant was 

guilty of all charges.

Appellant filed a petition for post-verdict relief, again arguing that he 

did not have actual physical control over the movement of the vehicle because 

the engine was not on. The trial court heard oral argument on January 19, 

2018, but denied relief. On February 15, 2018, the court sentenced Appellant 

to an aggregate term of 18 months of intermediate punishment and 3 years

of probation. Appellant filed a timely notice of appeal. Both the trial court 

and Appellant have complied with Pa.R.A.P. 1925(b).

On appeal, Appellant presents two sufficiency issues for our review:
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WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF 

LAW TO SUPPORT THE TRIAL COURT’S VERDICT OF GUILTY AS 

TO THE CHARGE OF DUI (75 PA.C.S.A § 3802 (a)(1))?

WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF 

LAW TO SUPPORT THE TRIAL COURT’S VERDICT OF GUILTY AS 

TO THE CHARGE OF PUBLIC DRUNKEN[N]ESS (18 PA.C.S.A § 

5505))?

Appellant’s Brief at 4.

Appellant first argues that the evidence was insufficient to support his 

conviction of DUI, and again asserts the evidence did not establish that he 

was in actual physical control of the movement of his car. In support, 

Appellant cites numerous Superior Court decisions addressing the sufficiency 

of evidence for DUI, emphasizing that in Commonwealth v. Price, 610 A.2d 

488 (Pa. Super. 1992), this Court held that actual physical control over a 

vehicle was not established where the defendant had the key in his hand and 

sat behind the wheel of a parked car and the engine was not running. 

Appellant’s Brief at 15. Appellant also cites Commonwealth v. Byers, 650 

A.2d 468 (Pa. Super. 1994). In Byers, this Court determined that the 

defendant did not have actual physical control where he was asleep in the 

driver’s seat, the motor and headlights were on, and the car was in the parking 

lot of a “lounge.” Appellant’s Brief at 15.

4

 Appellant argues: “As demonstrated 

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4 Although Appellant discusses Commonwealth v. Wolen, 685 A.2d 1384 

(Pa. 1996), he fails to mention that our Supreme Court in Wolen abrogated 

Byers, reiterating that “[w]ith respect to what constitutes ‘actual physical 

control’ in this Commonwealth, the courts have held that whether a 
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by cases, through at least 2009, an officer who locates a suspect sleeping in 

a car, even with the engine running, near an establishment that serves 

alcoholic beverages, does not even possess reasonable grounds to believe the 

person is in actual physical control of the vehicle.” Id. at 18, citing Solomon 

v. Commonwealth, Dept. of Transp., 966 A.2d 640, 642 (Pa. Cmwlth. 

2009).”5 

At the outset, we note our standard of 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.

Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa. Super. 2010) (citation 

omitted).

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person is in actual physical control of a motor vehicle is determined 

based on the totality of the circumstances, including the location of the 

vehicle, whether the engine was running and whether there was other 

evidence indicating that the defendant had driven the vehicle at some point 

prior to the arrival of police on the scene.” Wolen, 685 A.2d at 1385

(emphasis added).

5 Appellant refers to several Commonwealth Court cases, including Solomon, 

which address whether a police officer had reasonable grounds to believe that 

a motorist was in actual physical control of a vehicle while under the influence, 

so as to support suspension of the motorist’s operating privileges for refusing 

chemical test pursuant to 75 Pa.C.S.A. § 1547(b). These cases do not address 

the sufficiency of evidence for a criminal conviction of DUI under 75 Pa.C.S.A. 

§ 3802, and thus they are not authoritative in this case.
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Significantly, Appellant disregards the trial court’s role as the factfinder 

in this case. “It is not within the province of this Court to re-weigh the 

evidence and substitute our judgment for that of the fact-finder.” 

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (citations 

omitted). With regard to Appellant’s DUI conviction, the Vehicle Code states:

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.

See 75 Pa.C.S.A. § 3802(a)(1).

Subsequent to the Price and Byers cases cited by Appellant, this Court 

explained:

“The term ‘operate’ requires evidence of 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.” “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.” 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.”

Toland, 995 A.2d at 1246 (citations omitted). “The concept of ‘actual physical 

control’ involves the control of the movements of either the machinery of a 

motor vehicle or of the management of the vehicle itself, without a 

requirement that the entire vehicle be in motion.” Commonwealth v. 

Young, 904 A.2d 947, 955 (Pa. Super. 2006) (citation omitted).
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As noted by the trial court, our Supreme Court has summarized 

decisional authority of what constitutes “actual physical control” of a vehicle 

under the DUI statute:

Commonwealth v. Woodruff, 668 A.2d 1158 (Pa. Super. 1995) 

(actual physical control found where defendant’s car was on berm 

of the road fifty yards west of the store where he had purchased 

beer, the engine was running, the high beams were on and the 

car was protruding into traffic lanes); Commonwealth v. Trial, 

652 A.2d 338 (Pa. Super. 1994) (actual physical control found 

where defendant’s car was diagonally across a roadway, 

defendant was in the car with his seatbelt on, the parking lights 

were on and the keys were in the ignition in the “on” position, 

although the engine was not running); Commonwealth v. 

Wilson, 660 A.2d 105 (Pa. Super. 1995) (actual physical control 

found where defendant’s car was down an embankment by the 

roadside, no keys were found, but the hood of the car was still 

warm on a winter night); Commonwealth v. Leib, 588 A.2d 922, 

(Pa. Super. 1991) (actual physical control found where defendant 

was asleep in the car in the middle of the road with the engine 

off); Commonwealth v. Bobotas, 588 A.2d 518 (Pa. Super. 

1991) (actual physical control found where defendant was parked 

in an alley on his way home with his engine running); 

Commonwealth v. Crum, 523 A.2d 799 (Pa. Super. 1987) 

(actual physical control found where defendant was sleeping in his 

car on the side of the road with the engine and headlights on); 

Commonwealth v. Kloch, 327 A.2d 375 (Pa. Super. 1974) 

(actual physical control found where defendant was asleep behind 

the wheel of a car parked along the side of the highway, 

protruding into a traffic lane with the engine and headlights on) . 

. . ; cf. Commonwealth v. Price, 610 A.2d 488, 490 (Pa. Super. 

1992) (no actual physical control established where the defendant 

was sitting behind the wheel of a parked car; the engine was not 

running and the defendant had the keys in his hands).

Commonwealth v. Wolen, 685 A.2d 1384 (Pa. 1996) (citations 

reformatted). See also Toland, 995 A.2d at 1246 (defendant in actual 

physical control of vehicle where he was asleep in driver’s seat with motor 

running and headlights on, car was parked in front of a store that did not sell 
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beer, and cold, unopened six-pack of beer was in car).

Instantly, the trial court referenced the aforementioned cases and 

reasoned:

This Court convicted [Appellant] based on the fact that he 

was found by police officers slumped over in the driver’s side of 

his vehicle. While the engine was not running, the keys were in 

the ignition and the ignition was in the “on” position. The

dashboard lights were illuminated. [Appellant’s] vehicle was

parked in a parking lot of a ball field near a bar, a bar [Appellant]

conceded he entered prior to the police arriving on the scene. . . .

The vehicle was parked in a crooked manner and was not within 

the lines designated for the parking spots. This Court believes the 

instant circumstances are similar to Trial and Wilson, above. The

circumstantial evidence demonstrates that [Appellant] had, prior 

to police arrival, physically turned the ignition switch on to 

illuminate the lights within his vehicle while he was sitting behind 

the steering wheel. He then fell asleep while sitting in the driver’s

seat. The location of the vehicle suggested that [Appellant] had 

driven the vehicle to the parking spot and, unfortunately, did not 

park within the lines designated for parking. Accordingly, this 

Court believes the evidence was sufficient to convict [Appellant] 

of driving under the influence.

Trial Court Opinion, 5/18/18, at 5-6.

After reviewing all of the evidence in the light most favorable to the 

Commonwealth, in conjunction with prevailing law, we discern no basis upon 

which to disturb the trial court’s findings. We emphasize that in Trial, this 

Court affirmed the determination that the defendant was in actual physical 

control of his vehicle where, similar to the instant case, the engine was off but 

the keys were in the ignition and turned to the “on” position. See Trial, 652 

A.2d at 340. As the Commonwealth may show that a defendant was in actual 

physical control of a motor vehicle “through wholly circumstantial evidence,”
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we affirm Appellant’s conviction of DUI. See Toland, 995 A.2d at 1246.

In Appellant’s second issue, he challenges the sufficiency of the evidence 

with respect to his conviction of public drunkenness. The Crimes Code 

provides:

A person is guilty of a summary offense if he appears in any public 

place manifestly under the influence of alcohol or a controlled 

substance, as defined in . . . The Controlled Substance, Drug, 

Device and Cosmetic Act, except those taken pursuant to the 

lawful order of a practitioner, as defined in The . . . Act, to the 

degree that he may endanger himself or other persons or 

property, or annoy persons in his vicinity. . . .

18 Pa.C.S.A. § 5505.

Appellant asserts that the trial court appeared to “equate the possibility 

of danger . . . with actual danger,” and that in this case, “[b]eing asleep in a 

vehicle [when] the engine is not even running, creates no danger to anyone.” 

Appellant’s Brief at 21. Appellant contends that he did not endanger himself 

or other persons or property. The trial court disagreed. It reasoned:

It is clear from the record that the evidence adduced at trial 

sufficiently demonstrated that [Appellant] was intoxicated to such 

a degree that he was a danger to himself or other persons or 

property. The record clearly indicates that [Appellant] failed 

multiple field sobriety tests while has was slumped over and 

intoxicated in the driver’s seat of his automobile. The fact that he 

was endangering himself or other persons or property is magnified 

by the fact that the ignition was in the “on” position and the 

vehicle could have easily been shifted into gear by involuntary 

movements of [Appellant] while he was passed out drunk. He was 

in a public parking lot after having left a bar. This Court views 

this evidence as sufficient that he was guilty of public

drunkenness.

Trial Court Opinion, 5/18/18, at 7-8.
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While emphasizing that he was asleep, Appellant disregards the trial 

court’s reference to Appellant’s contemporaneous intoxication while seated in 

his automobile in a public parking lot with the keys engaged in the vehicle’s 

ignition. Viewing this evidence in the light most favorable to the 

Commonwealth, we are not persuaded by Appellant’s second sufficiency claim

regarding public drunkenness. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/16/2018