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

COMMONWEALTH OF PENNSYLVANIA

v.

ROBERT WINOWITCH, JR.

Appellant : : : : : : : : : 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 re lated 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

_________________ __________ ______ ____ _______

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.J

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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 t he affidavit , Officer
Deppen stated that on April 29, 2017, he respond ed 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 eve ntually 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 vehi cle 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.

_________________ __________ ______ ____ _______

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 officer s encountered Appellant.J

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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.

A t trial, A ppellant 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 cou rt 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 or al argument on January 19,

2018 , but denied relief. On February 1 5, 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 appe al. 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:J

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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 CHAR GE 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 fi rst a rgue s 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 decisio ns 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

sa t 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 dis cusses 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 aJ

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by cases, through at least 2009, an office r 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. Com monwealth , Dept. of Transp. , 966 A.2d 640, 642 (Pa. Cmwlth.
2009).” 5
At the outset, we note ou r 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 rea sonable doubt.

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

_________________ __________ ______ ____ _______ 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 defen dant 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 reasona ble grounds to be lieve 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 privil eges 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.J

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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, t he 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, t his 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 cont rol 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. ” Common wealth v.
Young , 904 A.2d 947, 955 (Pa. Super. 2006) (citation omitted).J

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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:

C ommonwealth 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. Su per. 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 si de 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 lan e wit h 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 defenda nt 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 sellJ

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beer , and cold, unopened six

- pack of beer was in car)

. Instantly, t he 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 Co urt 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 whi le 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

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

Commo nwealth , in conjunction with prevailing law , we discern no basis upon

which to disturb the trial court ’ s findings. We emphasize that i n Trial , th is

Court affirmed the determination that the defendant was in actual physical
control of his vehicle where, si milar 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 , ”J

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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 law ful 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 a ssert s 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 en danger himself

or oth er 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 ha ving 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

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While emphasizing that he was asleep, Appellant disregards the trial

court ’ s reference to Appellant ’ s contempora neous intoxication while seated in
his automobile in a public parking lot with the keys engaged in the vehic le ’ 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