J-S56044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

GERALD KENNETH KRAUSE, JR.,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 476 MDA 2018

Appeal from the Judgment of Sentence February 28, 2018

in the Court of Common Pleas of Lebanon County

Criminal Division at No(s): CP-38-CR-0000333-2017

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 03, 2018

Gerald Kenneth Krause, Jr. (“Krause”), appeals from the judgment of 

sentence imposed following his convictions of driving under the influence of 

alcohol (“DUI”), and the summary offense of driving under a DUI-suspended 

license.1 We affirm. 

In the early morning hours of January 19, 2017, Pennsylvania State 

Police Trooper Bruce Kleckner (“Trooper Kleckner”) began following a black 

Dodge Durango headed westbound on Route 22 in Jonestown, Pennsylvania. 

The Durango pulled off the road and stopped in the Jonestown Ag Supply

parking lot. Trooper Kleckner turned his vehicle around and observed the 

Durango for about five minutes. During this time, no one exited from the 

Durango or opened its doors. At approximately 2:10 a.m., Trooper Kleckner

initiated a traffic stop and found that the sole occupant of the vehicle was 

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1 See 75 Pa.C.S.A. §§ 3802(a)(2), 1543(b)(1.1)(i). 
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Krause. Krause was unable to provide his driver’s license and Trooper 

Kleckner detected indicia of intoxication, i.e., an odor of alcohol, slurred 

speech, and glazed over eyes. Krause admitted that he had been drinking

alcohol. Trooper Kleckner attempted to have Krause perform field sobriety 

tests, which Krause was unable to complete due to a health condition. Trooper 

Kleckner took Krause into custody and transported him to the Jonestown 

Pennsylvania State Police Barracks, where a breath test administered at 2:48 

a.m., indicated that Krause had a blood alcohol concentration (“BAC”) of 

.083%. Krause’s license was under an alcohol-related suspension at the time 

of the stop.

After a bench trial, Krause was convicted of DUI and the summary 

offense of driving under a DUI-suspended license. The trial court sentenced 

Krause to five days to six months in prison and a $500 fine for the DUI 

conviction, and a consecutive term of 90 days in prison and a $1,000 fine for 

the DUI-suspended license conviction. Krause filed no post-sentence motions. 

Rather, Krause filed a timely Notice of Appeal and a court-ordered 

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

On appeal, Krause raises the following question for our review: 

 

Whether the verdict of guilty on Counts 1 and 2, Driving Under 

the Influence of Alcohol was against the weight and sufficiency of 

the evidence and testimony presented at trial?

Brief for Appellant at 4. 

Krause challenges both the weight and the sufficiency of the evidence

in a single Argument section. Id. at 9-12. Specifically, Krause asserts that
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the Commonwealth did not present any evidence to prove that Krause was 

driving the vehicle. Krause alleges that a video he had unintentionally 

captured on his cellphone during the incident proves that his son Derik, rather 

than he, was driving the vehicle. Id. at 10, 12; see also id. at 10 (claiming 

that Krause’s own testimony demonstrated that he was not driving the 

vehicle); id. at 12 (claiming that the video was “uncontroverted” evidence 

that Krause was not driving the car). Krause contends that the vehicle was 

parked and the keys were not found at the time of the stop. Id. at 11. 

Initially, we note that it is improper to conflate weight and sufficiency 

challenges. See Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 

2000) (highlighting the distinctions between the two motions and explaining 

that “[a] motion . . . that the verdict is contrary to the weight of the evidence, 

concedes that there is sufficient evidence to sustain the verdict.” (citation 

omitted)). Regardless, Krause’s challenge to the weight of the evidence is 

waived due to his failure to raise it before the trial court. See 

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017) (reciting 

that “[a] challenge to the weight of the evidence must first be raised at the 

trial level (1) orally, on the record, at any time before sentencing; (2) by 

written motion at any time before sentencing; or (3) in a post-sentence 

motion.” (citation and quotation marks omitted)); see also Pa.R.Crim.P. 607. 

When considering a challenge to the sufficiency of the evidence, the 

standard we apply is
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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 [that of] the factfinder. In addition, we note that the facts and circumstances 

established by the Commonwealth need 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 trier 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. Johnson, 192 A.3d 1149, 1155 (Pa. Super. 2018)

(citation omitted). 

The Vehicle Code defines DUI, in relevant part, as follows:

(a) General impairment.—

* * *

(2) 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 alcohol concentration in the 

individual’s blood or breath is at least 0.08% but less than .10% 

within two hours after the individual has driven, operated or been 

in actual physical control of the movement of the vehicle. 

75 Pa.C.S.A. § 3802(a)(2).

To sustain a DUI conviction under Section 3802(a)(2), the 

Commonwealth must prove that an individual’s BAC was at least 0.08% or 

greater within two hours after the individual has last drove, operated, or been 
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in actual physical control of a motor vehicle. See id. § 3802(a)(2). 

Additionally,

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.

Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super. 2010)

(citations and some quotation marks omitted). 

The Vehicle Code defines Driving under a DUI-suspended license, in 

relevant part, as follows:

(b) Certain offenses.—

* * *

(1.1)(i) A person who has an amount of alcohol by weight in his 

blood that is equal to or greater than .02% at the time of testing 

. . . and who drives a motor vehicle on any highway or trafficway 

of this Commonwealth at a time when the person’s operating 

privilege is suspended or revoked as a condition of acceptance of 

Accelerated Rehabilitative Disposition for a violation of section 

3802 or former section 3731 or because of a violation of section 

1547(b)(1) or 3802 or former section 3731 shall, upon a first 

conviction, be guilty of a summary offense and shall be sentenced 

to pay a fine of $1,000 and to undergo imprisonment for a period 

of not less than 90 days. 

75 Pa.C.S.A. § 1543(b)(1.1)(i).
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Under Section 1543(b)(1.1)(i), “[t]he Commonwealth need not produce 

direct evidence of driving, but may instead rely on circumstantial evidence 

creating the inference that the vehicle had been in motion in order to meet its 

evidentiary burden.” Commonwealth v. Herb, 852 A.2d 356, 361 (Pa. 

Super. 2004) (citation omitted). Additionally, “[t]o sustain a 

[Section] 1543(b) conviction, the Commonwealth must establish that the 

defendant had actual notice that his license was suspended.” 

Commonwealth v. Brewington, 779 A.2d 525, 527 (Pa. Super. 2001). 

Here, Trooper Kleckner testified that on January 19, 2017, he 

encountered a Dodge Durango travelling westbound on Old Route 22. N.T., 

12/19/17, at 9. He observed the vehicle pull off the road and park in the 

parking lot of the Jonestown Ag Supply. Id. Trooper Kleckner turned his 

vehicle around and continued to observe the Durango for a period of about 5 

minutes. Id. at 10. During this time, he testified that he did not see anyone 

leave the vehicle or any of its doors open. Id. at 10-11. Upon conducting the 

vehicle stop, Trooper Kleckner testified that only Krause was inside the 

vehicle. Id. 11-12. Trooper Kleckner also testified that the vehicle’s keys 

were not absent, and that he did not search the vehicle for the keys. Id. at 

22-23. 

Trooper Kleckner further testified that Krause had glazed over eyes, 

slurred speech, and smelled of alcohol. N.T., 12/19/17, at 13. Krause 

admitted that he had been drinking prior to the vehicle stop, id. at 26, and 
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stipulated at trial to the result of the breath test, id. at 17, which was 

conducted within two hours of the stop, id. at 16-17. The breath test 

determined that Krause’s BAC was .083%. Id. at 18-19. Krause testified 

that, he was aware that his license was suspended at the time of the stop due 

to a prior DUI, N.T., 12/19/17, at 25-26, and stipulated to the existence of 

the suspension at trial, id. at 20. 

Here, the trial court found Trooper Kleckner’s testimony to be credible,

and Krause’s testimony and the video evidence to be not credible. See Trial 

Court Opinion, 4/30/18, at 11-12; see also Johnson, 192 A.3d at 1155 

(recognizing that “the trier 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.” (citation omitted)). This evidence, viewed in 

a light most favorable to the Commonwealth, was sufficient to prove that 

Krause was in control of the Durango at a time when his BAC exceeded the 

statutory limit. See 75 Pa.C.S.A. § 3802(a)(2); see also Toland, 995 A.2d 

at 1246. Further, the evidence was sufficient to prove that the Durango had 

been in motion prior to the stop. See Herb, 852 A.2d at 361. Finally, the 

evidence was sufficient to prove that Krause was driving the Durango at a 

time when he had actual notice that his license was suspended. See 75 

Pa.C.S.A. 1543(b)(1.1)(i); see also Brewington, 779 A.2d at 527. Based 

upon the foregoing, we conclude that the evidence is sufficient to support 

Krause’s convictions. 
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/03/2018