J-A03013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL LEE FOUST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 706 WDA 2023

Appeal from the Judgment of Sentence Entered May 17, 2023

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

No(s): CP-16-CR-0000094-2022

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.: FILED: March 14, 2024

Michael Lee Foust appeals from the judgment of sentence of seventytwo hours to six months of incarceration for his first offense of driving under 

the influence of a combination of alcohol and drugs (“DUI”). We affirm.

We glean the following history from the certified record. At 6:00 p.m. 

on November 12, 2021, Pennsylvania State Police were dispatched to the 

intersection of Cemetery Road and Craig Road, in Licking Township, for a 

report of a male passed out in the driver’s seat. Trooper Shawn Floor arrived 

on scene at 6:04 p.m., and observed Appellant, alone, slumped and 

unresponsive in the driver’s seat. After Appellant failed to stir in response to 

verbal commands, the trooper reached through the open window to shake 

Appellant awake. When Appellant regained consciousness, he was confused

and drowsy, had glassy bloodshot eyes, and emitted a faint odor of alcohol 
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when he spoke. Trooper Floor asked Appellant to exit the vehicle, and he 

complied. 

Trooper Joshua McGinnis arrived on scene at 6:20 p.m., after Appellant 

had exited his vehicle. The trooper immediately smelled the odor of an 

alcoholic beverage on Appellant’s breath, and observed Appellant’s speech as 

“slow and sluggish,” his eyes to be “extremely bloodshot,” and his eyelids 

tremoring. See N.T. Bench Trial, 2/13/23, at 14. When Trooper McGinnis 

asked Appellant, who lived in Kittanning, what he was doing in this remote 

stretch of farmland within an Amish community, Appellant responded that he 

had “pulled over on the side of the road because he just got done working a 

lot of hours.” Id. at 15. Appellant underwent field sobriety tests and 

consented to both a preliminary breath test, which was presumptively positive 

for alcohol, and a blood draw, which revealed the presence of fentanyl, 

amphetamine, methamphetamine, and alcohol. Appellant reported that he 

had “recently” used methamphetamine, but was unsure when, and had a 

couple of beers at an undisclosed time. Id. at 30. Before arranging for the

vehicle to be towed, the trooper collected the keys and Appellant’s phone from 

inside. Undefined “needles” were recovered during a subsequent search. Id. 

at 28. 

Based on the foregoing, Appellant was charged with DUI and illegal 

parking. Appellant proceeded to a bench trial, where he conceded impairment 

but contested whether the Commonwealth had proven he was in control of 

the vehicle. The court disagreed, convicting him of DUI but acquitting him of 
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the summary offense. Appellant was sentenced as indicated hereinabove and 

ordered to pay the costs of prosecution. 

This timely appeal followed. Appellant filed a court-ordered Pa.R.A.P. 

1925(b) statement, and the trial court responded with a Rule 1925(a) opinion. 

In this Court, Appellant has narrowed his issues on appeal to a single question: 

“Whether the trial court erred in concluding that the Commonwealth had 

proven beyond a reasonable doubt that Appellant drove, operated[,] or was 

in actual physical control of his vehicle while impaired?” Appellant’s brief at 5 

(unnecessary capitalization omitted). 

We review Appellant’s issue in light of the following legal precepts:

When reviewing a challenge to the sufficiency of the evidence, we 

must determine whether the evidence admitted at trial, and all 

reasonable inferences drawn therefrom, when viewed in a light 

most favorable to the Commonwealth as verdict winner, support 

the conviction beyond a reasonable doubt. Where there is 

sufficient evidence to enable the trier of fact to find every element 

of the crime has been established beyond a reasonable doubt, the 

sufficiency of the evidence claim must fail. This standard applies 

equally where the Commonwealth’s evidence is circumstantial.

Commonwealth v. Fallon, 275 A.3d 1099, 1105 (Pa.Super. 2022) (cleaned 

up).

Appellant was convicted of DUI pursuant to 75 Pa.C.S. § 3802(d)(3), 

which provides as follows:

(d) Controlled substances.--An individual may not drive, 

operate or be in actual physical control of the movement of a 

vehicle under any of the following circumstances:

. . . . 
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(3) The individual is under the combined influence of alcohol 

and a drug or combination of drugs to a degree which 

impairs the individual’s ability to safely drive, operate or be 

in actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802(d)(3).

Here, Appellant challenges whether the Commonwealth proved beyond 

a reasonable doubt that he operated, drove, or was in actual physical control 

of the vehicle. In that regard, we have provided the following guidance:

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. The Commonwealth can establish through wholly 

circumstantial evidence that a defendant was driving, operating[,]

or in actual physical control of a motor vehicle. Courts review a 

combination of the following factors to determine 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.

Fallon, 275 A.3d at 1105 (cleaned up). We reiterate, “the suspect location 

of the vehicle, which supports an inference that it was driven, is a key factor 

in a finding of actual control.” Commonwealth v. Brotherson, 888 A.2d 

901, 905 (Pa.Super. 2005) (citations omitted).

Appellant assails the Commonwealth’s lack of testimony about how long 

his vehicle had been parked on the roadway and contends that “merely being 

in the driver’s seat while impaired does not establish actual physical control.” 

Appellant’s brief at 13. Instead, he posits that the Commonwealth must prove 

additional facts, such as the keys being in the ignition, the engine running, or 

illuminating the vehicle’s lights. Id. 
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For support, Appellant cites this Court’s decision in Commonwealth v. 

Price, 610 A.2d 488 (Pa.Super. 1992). In Price, the jury specifically made a 

finding that Price had not been driving the car while impaired and that his 

girlfriend had instead been driving when she hit a pothole, incapacitating the 

car. Since he did not drive the car, the evidence had to establish that Price 

was in actual physical control of the car after it had broken down in order to 

sustain his DUI conviction. Considering this sub-element, the Price Court

clarified that “[t]here must be some indicia that the intoxicated person, who 

was seated in the car, had actual physical control of the vehicle.” Price, 610 

A.2d at 490. Reviewing our prior case law, we held that “at a very minimum, 

a parked car should be started and running before a finding of actual physical 

control can be made.” Id. (cleaned up). Ultimately, this Court concluded that 

Price’s presence in the driver’s seat and possession of the keys while the car 

was inoperable and not running were insufficient because he “was not driving 

the car before it became inoperable, and he could not drive the car after it 

became inoperable.” Id. at 491 (emphases in original). 

We determine Price to be an inapt comparison. Here, Appellant was 

not merely sitting in an inoperable vehicle while intoxicated. Furthermore, the 

factfinder did not determine that someone other than Appellant had parked 

the vehicle. Although we do not know precisely when Appellant pulled over, 

nor when he ingested the drugs and alcohol, Appellant admitted that he drank 

some beers and had taken methamphetamine “recently.” In making these 

admissions, he in no way indicated that he had done so after parking the 
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vehicle, much less offer evidence of so doing. While there was testimony that

nondescript “needles” were located inside the vehicle and an argument made 

that they were used to inject methamphetamine after pulling over, there was 

no testimony as to when they were used or for what purpose. As for 

Appellant’s alcohol consumption, the troopers did not recover any beer 

containers from within the vehicle, which one would expect to find if Appellant

had imbibed alcohol after pulling over. 

Critically, Appellant lived in Kittanning but his vehicle was parked, during 

the evening hours, in a relatively far and remote area. Appellant told the 

troopers that he had pulled the vehicle over after a long workday, and the 

keys were located inside the vehicle, where Appellant had been found 

unconscious behind the steering wheel. Further, the location of the stopped 

vehicle supported the inference that Appellant had driven the vehicle while 

impaired. Appellant declined to safely park off the roadway in the adjacent 

field. Instead, he stopped in the middle of the travel lane, dangerously 

obstructing an intersection frequented mainly by horse and buggy, and 

neglected to activate his hazard lights to warn of the vehicle’s presence in the 

darkening roadway. This evidences a hasty stop due to impairment, not a 

plan to park in the middle of an Amish community, imbibe alcohol and drugs, 

and then sleep in the shut-down vehicle, in November, until sober. See 

Brotherson, 888 A.2d at 905 (concluding that “[t]he highly inappropriate 

location of the car-on the basketball court of a gated children’s playground-
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created a strong inference that it was an already intoxicated [defendant] who 

had driven the car to that spot”). 

Given the totality of the circumstances after reviewing the evidence in 

the light most favorable to the Commonwealth, the evidence in the case sub 

judice was sufficient to establish that Appellant had driven the vehicle while 

intoxicated to the point of being unable to safely drive. Accordingly, we affirm 

Appellant’s judgment of sentence.

Judgment of sentence affirmed.

DATE: 03/14/2024