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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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 July 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 driving 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”) observed 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 vehicle, 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 Club $200 per year for 

public use of the parking lot to conduct business at the Municipal Building. 
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Jablonski in the driver’s seat of the locked vehicle, 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 vehicle. Jablonski failed 

several field sobriety tests administered by Sergeant Arce. Jablonski was 

placed under arrest and transported to the Leechburg Police Station. At the 

police station, Jablonski’s blood alcohol content was 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 Slovak 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 driver’s seat, and 

started the engine. 

Trial Court Opinion, 5/9/14, at 1-2. 

 After a bench trial, the trial court found Jablonski 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, Jablonski 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 our review: 

I. Whether the trial court should have granted [Jablonski’s] 

request for a not guilty verdict at trial[,] in that [Jablonski] 

was not in actual physical control of his motor vehicle as 

that term is defined in the Commonwealth? 
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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 the evidence underlying 

his conviction of DUI. When examining the sufficiency of evidence, 

[t]he standard we apply ... 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 a reasonable doubt. In applying 

[this] 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. 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 sufficient to sustain his 

conviction where the Commonwealth failed to establish that he was in 

physical control of the vehicle. Brief for Appellant at 12. Jablonski argues 

that the trial court improperly failed to apply this Court’s definition of “actual 
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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 court’s reliance upon the 

plurality decision of the Pennsylvania Supreme Court 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 that in Wolen, the 

Supreme Court addressed the adequacy of a jury instruction, whereas in 

Byers, the Superior Court addressed the sufficiency of the 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 decisions 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 majority of the Supreme 

Court. “When a court is faced with a plurality opinion, usually only the result 

carries precedential weight; the reasoning does not.” Commonwealth v. 
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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, regardless 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 DUI 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 follows: 

“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.” Commonwealth v. Johnson, 2003 PA Super 354, 

833 A.2d 260, 263 (Pa. Super. 2003). “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.” Commonwealth v. Woodruff, [] 447 Pa. Super. 222, 

668 A.2d 1158, 1161 (Pa. Super. 1995). A determination 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 circumstantial 

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. 
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Our courts, therefore, have properly focused on the

danger that defendant poses to society in determining 

what constitutes actual physical control. This danger or 

threat to society is not shown merely by proving that 

defendant started the engine of a car. It is shown

through a combination of the factors discussed above. 

The cases support the conclusion that a showing that 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 safety. 

[] 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 vehicle, 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 physical control when the 

defendant was found parked in an alley, where he had pulled over on the 

way home, with the motor running); and Commonwealth v. Crum, 523 

A.2d 799, 800 (Pa. Super. 1987) (finding actual physical control where 

defendant was found sleeping in his parked car, along 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 Jablonski’s vehicle, he noticed 
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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 door. Id. at 

8. According to Sergeant Arce, Jablonski’s eyes were 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 municipality 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 the basketball court of a 

gated children's playground—created a strong inference that it was an 

already intoxicated Appellant who had driven the car to that spot.” 

Brotherson, 888 A.2d at 905. Here, the location of Jablonski’s vehicle does 

not support an inference that an intoxicated Jablonski had driven the car. 
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Without evidence that Jablonski had exercised actual physical control of the 

movement of the vehicle, the evidence is not sufficient to sustain his 

conviction of DUI. Accordingly, we vacate Jablonski’s judgment of sentence. 

 Because of our resolution of Jablonski’s first claim, we need not 

address his remaining claim. 

 Judgment of sentence vacated. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/31/2015