J-A19035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : LANCE STEPHEN JABLONSKI, :

: Appellant : No. 1258 WDA 2014 Appeal from the Judgment of Sentence entered on Jul y 29, 2014 in the Court of Common Pleas of Armstrong County, Criminal Division, No. CP-03-CR-0000750-2012 BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 31, 2015 Lance Stephen Jablonski (“Jablonski”) appeals from the judgment of sentence entered following his conviction of drivin g under the influence of alcohol-highest rate of alcohol (“DUI”). 1 We vacate the judgment of

sentence. On July 18, 2012, while on routine patrol at 2:00 a.m., Parks Township Police Sergeant John Arce (“Sergeant Arce”) observe d a blue Dodge Durango parked in the parking lot of the Slovak Club, with its engine running. 2 After parking his police vehicle behind Jablonski’s vehic le, Sergeant Arce observed

1 75 Pa.C.S.A. § 3802(c).

2 The Parks Township Municipal Building is directly adjacent to the Slovak Club. Trial Court Opinion, 5/9/14, at 1. Because of its location, members of the public must traverse the Slovak Club’s parking lot to access the municipal building. Id. As a result, Parks Township entered into an agreement whereby Parks Township paid the Slovak Cl ub $200 per year for public use of the parking lot to conduct business a t the Municipal Building.J-A19035-15

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Jablonski in the driver’s seat of the locked vehicl e, with his head slumped and eyes closed. Sergeant Arce identified himself and tapped on the window. After several unsuccessful attempts to get Jablonski’s attention, Jablonski opened the driver’s door and exited the v ehicle. Jablonski failed several field sobriety tests administered by Sergea nt Arce. Jablonski was placed under arrest and transported to the Leechbur g Police Station. At the police station, Jablonski’s blood alcohol content w as found to be 0.169%. In its Opinion, the trial court also set forth the following relevant facts: [Jablonski] had been drinking inside [of] the Slova k Club for an extended period of time. Later in the evening, he decided to leave the Club. The bartender told [Jablonski] to wait in his car and he would drive him home, but when the bartender left the Club, [Jablonski] was not in his vehicle. At some later point, [Jablonski] returned to his vehicle, sat in the dri ver’s seat, and started the engine. Trial Court Opinion, 5/9/14, at 1-2. After a bench trial, the trial court found Jablons ki guilty of DUI. Thereafter, the trial court sentenced Jablonski to 72 hours to 6 months in the county jail, plus a fine and costs. Jablonski filed a Post-Sentence Motion, which the trial court denied. Thereafter, Jablonsk i filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925( b) Concise Statement of Matters Complained of on Appeal. Jablonski now presents the following claims for ou r review:

I. Whether the trial court should have granted [Jablon ski’s] request for a not guilty verdict at trial[,] in tha t [Jablonski] was not in actual physical control of his motor veh icle as that term is defined in the Commonwealth?J-A19035-15

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II. Whether a private club parking lot is a highway or traffic way sufficient to warrant a conviction for 75 Pa.C. S.A. § 3802? Brief for Appellant at 5. Jablonski’s claims challenge the sufficiency of th e evidence underlying his conviction of DUI. When examining the sufficie ncy of evidence, [t]he standard we apply ... is whether viewing all the evidence admitted at trial in the light most favorable to th e verdict winner, there is sufficient evidence to enable the fact-fin der to find every element of the crime beyond a reasonable doubt. In applying [this] test, we may not weigh the evidence and subs titute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth n eed not preclude every possibility of innocence. Any doubt s regarding a defendant’s guilt may be resolved by the fact-finde r unless the evidence is so weak and inconclusive that as a matt er of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its bu rden of proving every element of the crime beyond a reasona ble doubt by means of wholly circumstantial evidence. Moreov er, 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 credibil ity of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Houck , 102 A.3d 443, 449 (Pa. Super. 2014) (quoting

Commonwealth v. Barnswell Jones , 874 A.2d 108, 120-21 (Pa. Super. 2005) (citation omitted)).

Jablonski first claims that the evidence is not su fficient to sustain his

conviction where the Commonwealth failed to establi sh that he was in physical control of the vehicle. Brief for Appella nt at 12. Jablonski argues that the trial court improperly failed to apply thi s Court’s definition of “actualJ-A19035-15

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physical control of the movement of a vehicle,” as set forth in Commonwealth v. Byers , 650 A.2d 468 (Pa. Super. 1994). Brief for Appellant at 20. Jablonski challenges the trial co urt’s reliance upon the plurality decision of the Pennsylvania Supreme Cour t in Commonwealth v.

Wolen , 685 A.2d 1384 (Pa. 1996). Brief for Appellant at 20. According to Jablonski, the trial court further erred in relying upon footnote 4 in Wolen , which, Jablonski argues, was dicta

. Id. Beyond the non-controlling nature

of dicta , in a plurality decision, Jablonski points out tha t in Wolen , the Supreme Court addressed the adequacy of a jury inst ruction, whereas in Byers , the Superior Court addressed the sufficiency of t he evidence underlying the appellant’s DUI conviction. Id. at 18. Thus, the cases

involved different standards of review. Id. Jablonski directs our attention to subsequent deci sions wherein the Superior Court applied the Byers test under the old DUI statute (75 Pa.C.S.A. § 3731) and the new DUI statute (75 Pa.C. S.A. § 3802). Brief for Appellant at 20. Jablonski cites Commonwealth v. Brotherson , 888 A.2d 901 (Pa. Super. 2005), wherein this Court cited Byers as the controlling standard to be applied. Brief for Appellant at 23. First, we are cognizant that in Wolen , the Opinion, authored by the Honorable Ronald D. Castille, was not joined by a m ajority of the Supreme Court. “When a court is faced with a plurality opi nion, usually only the result carries precedential weight; the reasoning does not .” Commonwealth v.J-A19035-15

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O.A. , 717 A.2d 490, 496 n.4 (Pa. 1998). Accord Commonwealth v.

Bethea , 828 A.2d 1066, 1073 (Pa. 2003). Thus, regardles s of whether

footnote 4 constitutes dicta , the reasoning set forth in the Opinion announcing the decision of the Supreme Court is not precedential. See id.

The Crimes Code defines the relevant offense of DU I as follows: (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. 75 Pa.C.S.A. § 3802(c).

In Brotherson , this Court analyzed the “actual physical control” component of the predecessor to Section 3802 as fol lows: “The term ‘operate’ requires evidence of actual phy sical control of either the machinery of the motor vehicle or the management of the vehicle’s movement, but not evidence that th e vehicle was in motion.” Commonwealth v. Johnson , 2003 PA Super 354, 833 A.2d 260, 263 (Pa. Super. 2003). “Our preceden t indicates that a combination of the following factors is requ ired in determining whether a person had ‘actual physical c ontrol’ of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle.” Commonwealth v. Woodruff , [] 447 Pa. Super. 222, 668 A.2d 1158, 1161 (Pa. Super. 1995). A determina tion of actual physical control of a vehicle is based upon the totality of the circumstances. [ Commonwealth v

. ] Williams , [2005 PA Super 105, 871 A.2d 254,] 259 [(Pa. Super. 2005)]. “The Commonwealth can establish[,] through wholly circum stantial evidence[,] that a defendant was driving, operating or in actual physical control of a motor vehicle.” Johnson , supra at 263. Actual physical control requires more than evidence of a motorist starting the engine to a parked vehicle.J-A19035-15

- 6 - Our courts, therefore, have properly focused on the danger that defendant poses to society in determini ng what constitutes actual physical control. This dan ger or threat to society is not shown merely by proving th at defendant started the engine of a car. It is shown through a combination of the factors discussed abov e. The cases support the conclusion that a showing tha t an intoxicated defendant started a parked car, without more, is not enough to prove actual physical control. The Commonwealth must show some additional facts to illustrate that defendant was a danger to public sa fety. [] Byers , ... 650 A.2d [at] 470[.]

Brotherson , 888 A.2d at 904-05 (emphasis added). Accord

Commonwealth v. Toland , 995 A.2d 1242, 1246 (Pa. Super. 2010). “In a majority of cases, the suspect location of the vehi cle, which supports an inference that it was driven, is a key factor in a finding of actual control.”

Brotherson , 888 A.2d at 905 (citing Commonwealth v. Bobotas , 588 A.2d 518, 521 (Pa. Super. 1991) (finding actual phy sical control when the defendant was found parked in an alley, where he ha d pulled over on the way home, with the motor running); and Commonwealth v. Crum , 523 A.2d 799, 800 (Pa. Super. 1987) (finding actual phy sical control where defendant was found sleeping in his parked car, alo ng the side of the road, with the headlights on and the motor running). At trial, Sergeant Arce testified that at about 2: 00 a.m. on July 18, 2012, while driving on routine patrol, he observed Jablonski slumped over in his vehicle, in the parking lot of the Slovak Club. N.T., 4/16/14, at 5. Sergeant Arce stated that as he approached Jablonsk i’s vehicle, he noticedJ-A19035-15

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that its engine was running. Id. at 6. Sergeant Arce stated that he knocked

on the driver’s side window several times. Id. at 7. Eventually, Jablonski responded. Id. After several attempts, Jablonski unlocked his do or. Id. at 8. According to Sergeant Arce, Jablonski’s eyes we re glassy and he had a hard time standing. Id. Sergeant Arce administered three field sobriety tests, each of which Jablonski failed. Id. Sergeant Arce also testified that although the Slovak Club is a private club, the mun icipality pays for the use of its parking lot. Id. at 9. On cross-examination, Sergeant Arce admitted that he never saw the

vehicle move. Id. at 10. Sergeant Arce further stated that he never observed Jablonski place his hands on the steering wheel or attempt to put the vehicle in gear. Id. at 11. Sergeant Arce had no knowledge of how the

vehicle came to be in that location. Id. In addition, there was no evidence that Jablonski had been drinking in his vehicle. Id. at 12. Finally, there was no one else in the parking lot at that time. Id. at 13. This evidence, viewed in a light most favorable to the Commonwealth,

is not sufficient to sustain Jablonski’s conviction of DUI. In Brotherson , “[t]he highly inappropriate location of the car—on t he basketball court of a gated children's playground—created a strong inferen ce that it was an already intoxicated Appellant who had driven the ca r to that spot.”

Brotherson , 888 A.2d at 905. Here, the location of Jablonski ’s vehicle does not support an inference that an intoxicated Jablon ski had driven the car.J-A19035-15

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Without evidence that Jablonski had exercised actua l physical control of the movement of the vehicle, the evidence is not suffic ient to sustain his conviction of DUI. Accordingly, we vacate Jablonsk i’s judgment of sentence.

Because of our resolution of Jablonski’s first cla im, we need not address his remaining claim. Judgment of sentence vacated. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/31/2015