J-S55002-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEREMIAH POLKA

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 156 WDA 2020

Appeal from the Judgment of Sentence Entered September 24, 2019

In the Court of Common Pleas of Armstrong County

Criminal Division at No(s): CP-03-CR-0000792-2018

BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.* MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2021

Jeremiah Polka appeals from his judgment of sentence of twenty-four

to sixty months of imprisonment imposed after a jury convicted him of

multiple counts of driving under the influence (“DUI”). We affirm.

The trial court offered the following summary of the evidence offered at

Appellant’s trial:

At approximately 4:00 a.m. on the morning of August 26,

2018, Pennsylvania State Troopers Peter Schultz (“Schultz”) and

Kalee Wietrzykowski (“Wietrzykowski”) were dispatched to an

area near [the] intersection of Route 66 and Dime Road in Bethel

Township, Armstrong County. An individual called 911 and

reported seeing [Appellant] in his vehicle. Trooper Schultz stated,

“I was dispatched to a possible disabled motorist for a welfare

check of an individual.” The caller left the scene in his own vehicle

after briefly making contact with the troopers. Once the caller

departed Trooper Schultz testified that “I observed the silver

vehicle with two tires on the roadway. They were approximately

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* Retired Senior Judge assigned to the Superior Court.
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one and half to two feet to the right of the fog line, so it is clearly

on the roadway.” The keys were in the ignition and the motor was

running. Schultz went on to testify that he

walked up to the driver’s side of the vehicle where I

observed [Appellant] seated in the driver’s seat, head

slouched down towards his chest. He was not

responsive. I knocked on the window. He did not

wake up. I had to open up the driver’s side door

where I shook him. He was extremely cold to the

touch. He did not wake up. I had to perform a

sternum rub. I am not sure what kind of condition he

is in. I smelled a strong odor of an alcoholic beverage

emanating from the vehicle. His breath was

extremely shallow at the time.

Trooper Schultz noted that once he was able to rouse [Appellant]

and get him out of the vehicle he could “observe, right in the

center console, in plain view, without looking hardly at all, was

two marijuana smoking devices and small bag of suspected

marijuana.” Trooper Schultz also found a cooler full of unopened

beer in the backseat. Schultz further testified “I did not observe

any empty containers leading up to vehicle, in the vehicle, or

around the vehicle.”

Once [Appellant] was out of the vehicle, Trooper Schultz

attempted a field sobriety test known as the lack of convergence

test, and noted, “he wasn’t able to focus on my finger, so it did

not go well at all.” [Trooper] Schultz also testified that once

[Appellant] was out of the vehicle there was still an odor of alcohol

and that “he was a little disheveled. His movements were slow

and sluggish.” [Appellant] also made statements to Trooper

Schultz “about his driving that night, him driving to the scene.”

[Appellant] stated that he believed he was on State Route 85

coming from Plumville. However, [Appellant] was approximately

20 miles away from where he believed he was.

Trooper Wietrzykowski also testified during the jury trial.

She testified that she was “dispatched for a suspicious vehicle to

check on the welfare of an operator sleeping behind a running

vehicle. The call came in as a Honda running, operator asleep.”

In her testimony, she noted that [Appellant] was unable to walk

appropriately and that she smelled an alcoholic beverage on his

breath and that he had red eyes. Trooper Wietrzykowski
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performed the standardized field sobriety tests on [Appellant]. Specifically she performed the horizontal gaze nystagmus, the

walk and turn, and the one -leg stand. He performed “extremely

poor” on the walk and turn, exhibiting seven out of eight cues.

She was unable to complete the one leg stand. [Appellant] also

made several statements to the trooper while at the scene. “He

stated ‘I am going to be DUI and I have THC in my system.’”

[Appellant] also made statements to Trooper Wietrzykowski about

him driving.

Q. Did [Appellant] ever make a statement to you

concerning how his vehicle got to where it was?

A. He did. He made multiple statements. The one

was in regards to him pulling over. When we were

leaving, he – Q. What do you mean when you were leaving?

A. When we were en route back to the hospital, Mr.

Polka stated, “Oh, at least I pulled over.” I believe

something along those lines the MVR stated.

Q. How about when he was outside of the police

vehicle still in handcuffs. Did he make any statements

around that time about pulling over?

A. He did, yes. He stated that he didn’t want - along

the lines of he did not want to go out again because it

was no fun. Then he stated that he pulled over. It

was more or less, “Well, at least I pulled over.” I don’t

remember the exact verbiage. He did state that he

pulled over.

[Appellant] was transported to Armstrong County Memorial

Hospital where he consented to a legal blood draw. After testing,

it was determined that [Appellant] had a BAC of .168 percent and

he tested positive for methamphetamine and THC, both the active

and inactive metabolites.

[Appellant] testified during the trial as well. He stated that

while there was much he could not remember about the evening

in question, he did recall that it was not him, but rather a woman
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named “Amanda” who drove the vehicle to where it was located

by the troopers. After an evening of drinking at various bars and

restaurants in the Armstrong County area she drove his vehicle, and left him in the location where he was observed by the 911

caller. [Appellant] made no mention of this woman to either

trooper at the scene.

Trial Court Opinion, 3/25/20, at 2-4 (cleaned up).

Based upon this evidence, the jury found Appellant guilty of DUI—

highest rate of alcohol, and several other DUI counts. The trial court

sentenced Appellant as indicated above on the highest-rate count, and

imposed no further penalty for the other convictions. Appellant filed a timely

post-sentence motion, and, following its denial, a timely notice of appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following questions for our review:

1. Were inferences as to whether it was [Appellant] or

Amanda who drove [Appellant]’s car to the vacant lot “more likely

than not to flow from the proved fact on which it is made to

depend”?

2. Did the Commonwealth prove that [Appellant]’s

vehicle was actually on a “highway or trafficway,” an element of

the offense[,] under 75 Pa.C.S. § 102?

Appellant’s brief at 3.

Since Appellant’s questions both challenge the sufficiency of the

evidence to sustain his convictions, we will address them together. The

following principles govern our review:

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
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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 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. Reed, 216 A.3d 1114, 1119 (Pa.Super. 2019) (internal

quotation marks omitted).

Appellant was found guilty of violating each of the following provisions

of the DUI statute:

(c) Highest rate of alcohol.—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 0.16%

or higher within two hours after the individual has driven,

operated or been in actual physical control of the movement of

the vehicle.

(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:

(1) There is in the individual’s blood any amount of a:

(i) Schedule I controlled substance . . .;

(ii) Schedule II or Schedule III controlled substance

. . . which has not been medically prescribed for the

individual; or
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(iii) metabolite of a substance under subparagraph (i)

or (ii).

. . . . (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. While each of these offenses requires the individual to have operated or

been in actual physical control of a vehicle, it does not require proof that the

vehicle was ever in motion under the defendant’s control. See, e.g., Commonwealth v. Young, 904 A.2d 947, 954 (Pa.Super. 2006). To satisfy

this element of the offense, the Commonwealth must only establish, beyond

a reasonable doubt, that the defendant controlled “either the machinery of the

motor vehicle or the management of the vehicle’s movement[.]”

Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa.Super. 2005).

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. In addition, when the location of the vehicle

supports an inference that it was driven, this inference will serve

as a key factor in a finding of actual control[.]

Young, supra at 954 (cleaned up).

Further, since DUI is classified as a “serious traffic offense,” it must

occur upon a “highway” or “trafficway.” See Commonwealth v. Lees, 135
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A.3d 185, 189 (Pa.Super. 2016) (citing 75 Pa.C.S. §§ 3101(b), 3802(a)).

Those terms are defined as follows:

“Highway.” The entire width between the boundary lines of every

way publicly maintained when any part thereof is open to the use

of the public for purposes of vehicular travel. The term includes

a roadway open to the use of the public for vehicular travel on

grounds of a college or university or public or private school or

public or historical park.

. . . . “Trafficway.” The entire width between property lines or other

boundary lines of every way or place of which any part is open to

the public for purposes of vehicular travel as a matter of right or

custom.

75 Pa.C.S. § 102. Nonetheless, “Pennsylvania law recognizes that roadways

in private areas, or areas restricted to permit-holders, can still meet the ‘public

use’ requirement for purposes of Sections 3101, 102 and the DUI statute.”

Lees, supra at 189 (collecting cases holding that private parking areas are

“trafficways”).

In the case sub judice, Appellant attacks the Commonwealth’s proof

both as to his diving the vehicle at all, and to his being in control of the vehicle

on a highway or trafficway. He asserts that the “vacant lot” where he was

found was not a highway or trafficway. Thus, the Commonwealth offered no

direct evidence that Appellant had been in control of the vehicle while under

the influence. See Appellant’s brief at 12-13.

Further, Appellant claims, the Commonwealth produced no

circumstantial evidence to establish that he had driven the vehicle before the
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troopers encountered him. He maintains that without evidence as to how

Appellant traveled to the “vacant lot” where he was found, the jury had to

engage in impermissible speculation to decide whether he or “Amanda” drove

the vehicle to that location. Id. at 10. Appellant contends that the jury could

not reasonably infer that he had been the driver, as the Commonwealth

established that he had been deeply unconscious, and after he was revived

with difficulty by the troopers, he believed himself to be in a location twenty

miles from where he actually was with no recollection how he got there or into

the driver’s seat. Id. at 10-11.

Upon review of the Commonwealth’s evidence, we conclude that

Appellant’s arguments are entirely without merit. As the trial court

summarized, the Commonwealth offered proof that Appellant

was found in the driver seat of his vehicle, with the engine

running, with two [of] its tires on the shoulder of the road.

Furthermore, [Appellant] stated that “at least he pulled over” on

more than occasion. The troopers reported that there were no

empty beer cans or liquor bottles that would support drinking after

arriving at the location.

Trial Court Opinion, 3/25/20, at 8.

First, this evidence, supported by the certified record before us, was

sufficient to allow a jury to conclude that the Commonwealth established

beyond a reasonable doubt that Appellant drove his car to the spot where he

was found, and that his self-serving testimony that someone else drove him

there was not credible. See, e.g., Reed, supra at 1119 (“[T]he finder of fact

while passing upon the credibility of witnesses and the weight of the evidence
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produced, is free to believe all, part or none of the evidence.”) (cleaned up)).

Aside from Appellant’s admissions that he drove, it was entirely proper for the

jury to infer that the reason Appellant thought he was twenty miles away from

where he was found, and had no recollection of how he got there, was not

because “Amanda” drove him there and then departed, but because Appellant

was so highly intoxicated. It was through reasonable inferences, not

speculation, that the jury concluded that Appellant had driven under the

influence on the roadway before pulling over and falling asleep.

Second, the Commonwealth’s proof included direct evidence that

Appellant was in control of his vehicle on a trafficway. Troopers Schultz and

Wietrzykowski both testified that they encountered Appellant unconscious in

the driver’s seat of the vehicle while the engine was running. See N.T. Trial,

7/10/19, at 7-8, 40-42. We have held that such evidence establishes actual

physical control for purposes of the DUI statute. See Commonwealth v.

Toland, 995 A.2d 1242, 1246 (Pa.Super. 2010) (holding evidence that the

defendant was “asleep in the driver's seat of the vehicle with the motor

running and the headlights illuminated” established that he was in actual

physical control of the movement of the vehicle).

Furthermore, the Commonwealth offered testimony and photographic

evidence that the spot where Appellant was found was not some private

“vacant lot,” but an area open to public use. The Commonwealth’s Exhibits 2

and 3 clearly show, respectively, the area in question during daylight hours,
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and the position of Appellant’s vehicle, with two wheels on the asphalt and

two wheels on the roadside:

N.T. Trial, 7/10/19, at 13-15; Exhibits 2 and 3 (license plate redacted). This

was sufficient evidence to establish that the troopers encountered Appellant

on a trafficway. See Commonwealth v. Yaninas, 722 A.2d 187, 189

(Pa.Super. 1998) (holding evidence was sufficient where the Commonwealth

established that the defendant was found asleep behind the wheel of a car

stopped on the berm of the road); Commonwealth v. Crum, 523 A.2d 799,

800 (Pa.Super. 1987) (same).

Thus, we conclude that the Commonwealth offered sufficient evidence

to allow the jury to conclude beyond a reasonable doubt that, while under the

influence, Appellant both drove his vehicle on a roadway or trafficway before

the troopers arrived, and that they found him in control of the vehicle on a

trafficway. Consequently, no relief is due.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/5/2021