J-S67042-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHERZOD HALDAROV 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 997 MDA 2019

Appeal from the Judgment of Sentence Entered March 21, 2019

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

No(s): CP-14-CR-0000937-2018

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 15, 2020

Appellant Sherzod Haldarov appeals the judgment of sentence entered 

by the Court of Common Pleas of Centre County after Appellant was convicted 

of Driving Under the Influence (DUI) of Alcohol (78 Pa.C.S.A. § 3802(a)(1)

(General Impairment – Incapable of Safely Driving)). Appellant claims there 

was insufficient evidence to show he had operated his car while under the 

influence of alcohol. We affirm.

The factual background of this case was developed at Appellant’s bench 

trial, which was held on November 30, 2018. On the morning of May 19, 

2018, Theophelia Waksmunski, a prehospital registered nurse, responded to 

a report of an unresponsive male found in a parked car in Philipsburg. When 

Ms. Waksmunski arrived at the scene, she noticed that the vehicle was running 

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* Former Justice specially assigned to the Superior Court.
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and was facing the wrong direction on a one-way street. Notes of Testimony 

(“N.T.”), 11/30/18, at 4-6. The car, which had a flat tire, was located in a 

parking space but was protruding into the lane of travel on East Pine Street, 

and thus, was impeding traffic. Id. at 4-7. The vehicle’s sole occupant, 

Appellant, had a disheveled appearance and seemed to be sleeping in the 

driver’s seat. Id. at 7-8. When Ms. Waksmunski knocked on Appellant’s 

window, he woke up. Id. at 9. While Appellant attempted to comply with Ms. 

Waksmunski’s request to pull his vehicle into the parking space, Appellant was 

unable to get the vehicle completely off the roadway. Id. at 9-10. 

When Pennsylvania State Police Troopers Ty Ammerman and Gregory 

Bacher arrived at the scene, Appellant was standing next to his vehicle. Id. 

at 21. The troopers observed that Appellant was disheveled, had bloodshot 

and glassy eyes, responded slow and sluggishly, and had a strong odor of 

alcohol on his person. Id. at 22-23. When Trooper Ammerman asked where 

Appellant was traveling from, Appellant first asserted he had been traveling

on I-95 from Baltimore to New York, which is a substantial distance from 

Philipsburg. Id. at 21. Thereafter, Appellant claimed he was actually coming 

from State College. Id. At one point, Appellant admitted he did not know 

where Philipsburg was. Id. at 40. Appellant conceded that he had left a 

restaurant after consuming several shots of alcohol. Id. at 22. Appellant 

could not explain why his vehicle’s tire was flat. Id.

As Appellant exhibited “classic signs of impairment,” the troopers asked 

Appellant to perform field sobriety testing, but Appellant refused to do so and 
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become uncooperative. N.T. at 41. At that point, the officers placed Appellant 

under arrest for suspicion of DUI. The officers transported Appellant to a local 

hospital, asked that he submit to blood testing, and read Appellant the 

appropriate DL-26 form. However, Appellant refused to have his blood drawn.

At trial, Appellant testified on his own behalf and claimed he drove from 

Baltimore to Philipsburg for work. Id. at 56-57. Appellant asserted that he 

got a flat tire, made a U-turn on East Pine Street, and parked facing the wrong 

way on the one-way street. Id. When Appellant tried to start the car again 

to move it, Appellant’s car would not start. Id. at 57-58. Appellant’s boss, 

Oleg Kuts, picked him up and took him to a restaurant where Appellant drank 

two or three shots of Cognac before dinner, some more drinks after dinner, 

and another beer at Kuts’s home. Id. at 59-60. Appellant alleged that he fell 

asleep at Kuts’s home, awoke at 4:30 or 5:00 a.m., and walked to his car, 

where he again fell asleep, while he was waiting for a mechanic to arrive. Id. 

at 60. Appellant awoke to Ms. Waksmunski knocking on his window. 

Appellant denied that his vehicle was running and claimed the car 

battery was dead. Id. at 61. Moreover, Appellant asserted that his car 

remained in the parking spot from 10:00 p.m. the night before his arrest to 

6:30 a.m. the following morning. Id. at 67. Even though Appellant admitted 

his vehicle was partially blocking traffic, his car was not towed and he was not 

notified that his car should have been moved. Appellant indicated that he 

refused a blood test because he was observing the holiday of Ramadan and 

was prohibited from eating or giving blood during daylight hours. Id. at 63.
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The defense also presented the testimony of Kuts, who could not recall 

the time in question very clearly as he had consumed alcohol the night before 

Appellant’s arrest. Id. at 49. After Appellant was stranded with a flat tire on 

the night in question, Kuts took Appellant to the Osceola Hotel for dinner and 

alcoholic drinks. Id. at 49-51. Kuts recalled that both men drank heavily and

were “pretty intoxicated” before going to sleep at Kuts’s home at 1:00 or 2:00 

a.m. Id. at 51. Kuts claimed that he left his home at 4:30 or 5:00 a.m. and 

saw Appellant was still sleeping on his couch. Id. at 52.

On November 30, 2018, Appellant was convicted of DUI (General 

Impairment – Incapable of Safely Driving) and various summary offenses. On 

March 21, 2019, the trial court sentenced Appellant to not less than five (5) 

days to no more than six (6) months’ imprisonment. Appellant filed a postsentence motion, which the trial court subsequently denied. Appellant filed a 

timely appeal and complied with the trial court’s direction to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Appellant raises one issue for review on appeal:

Was the evidence adduced by the Commonwealth insufficient to 

prove beyond a reasonable doubt that on Saturday, May 19, 2018, 

[Appellant] did unlawfully drive, operate, or be in actual control of 

the movement of his vehicle after imbibing a sufficient amount of 

alcohol such that he was rendered incapable of safely driving, 

operating or being in actual physical control of the movement of 

his vehicle?

Appellant’s Brief, at 6.

In reviewing Appellant’s challenge to the sufficiency of the evidence 

supporting his DUI conviction, our standard of review is as follows:
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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 a reasonable doubt. In 

applying the above test, we may not weigh the evidence and 

substitute our judgment for [that of] 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 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. Leaner, 202 A.3d 749, 768, (Pa.Super. 

2019) (citation omitted). To reiterate, the jury, as the trier of 

fact—while passing on the credibility of the witnesses and the 

weight of the evidence—is free to believe all, part, or none of the 

evidence. Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 

2014) (citation omitted). In conducting review, the appellate court 

may not weigh the evidence and substitute its judgment for the 

fact-finder. Id. at 39-40.

Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa.Super. 2019).

Appellant was convicted of DUI under Section 3802(a)(1) of the Vehicle 

Code which provides:

(a) General impairment.—

(1) 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 individual is 

rendered incapable of safely driving, operating or being in 

actual physical control of the movement of the vehicle.
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75 Pa.C.S.A. § 3802(a)(1).

Appellant argues that the prosecution failed to prove that he “operated” 

a motor vehicle while under the influence of a controlled substance. We are 

guided by the following principles: 

The term “operate” necessitates evidence of actual, physical

control of either the machinery of the motor vehicle or the 

management of the vehicle's movement, but does not require 

evidence that the vehicle was in motion. Commonwealth v.

Johnson, 833 A.2d 260, 263 (Pa.Super. 2003). Under 

Pennsylvania law, an eyewitness is not required to establish one 

was driving, operating, or in actual physical control of a motor 

vehicle, but, rather, the Commonwealth may establish the same 

through wholly circumstantial evidence. Id. “‘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. Brotherson, 888 A.2d 901, 904 

(Pa.Super. 2005) (citing Commonwealth v. Woodruff, 447 

Pa.Super. 222, 668 A.2d 1158, 1161 (1995)). 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; conversely, where the location of a vehicle supports an 

inference that it was not driven, this Court has rejected the 

inference of actual control. Brotherson, 888 A.2d at 905. In 

Brotherson, we determined that “[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 [a]ppellant who had driven the car to that spot.” Id.

Commonwealth. v. Young, 904 A.2d 947, 954 (Pa.Super. 2006).

In this case, in the early morning hours of May 19, 2018, Appellant was 

found unresponsive in his vehicle, which had a flat tire and was parked facing 

the wrong way on a one-way street, such that his vehicle was protruding into 

the lane of travel and impeding the flow of traffic. Responding officers noted 
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Appellant was disheveled, smelled of alcohol, and exhibited classic signs of 

intoxication. 

It was reasonable for the trial court to infer that Appellant was 

intoxicated to the point that his impaired driving led him to incur a flat tire, 

subsequently drive and park his car in this inappropriate location, and then 

pass out behind the steering wheel of the vehicle. 

The trial court was free to reject Appellant’s testimony that he left his 

vehicle, which allegedly became inoperable the prior evening, facing the 

wrong way and impeding traffic for over ten hours on a busy street in 

Phillipsburg without anyone seeking to have Appellant’s vehicle removed from 

the roadway. Appellant’s assertion that his motor was not running was 

contradicted by the testimony of Ms. Waksmunski, who testified that 

Appellant’s car was running when she arrived at the scene.1 

When reviewing the evidence in the light most favorable to the 

Commonwealth, we conclude the trial court did not err in finding there was 

sufficient evidence that Appellant drove, operated, or was in actual physical 

control of his vehicle after imbibing a sufficient amount of alcohol, which 

rendered Appellant incapable of safely driving, operating or being in actual 

physical control of the movement of the vehicle.

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1 Even assuming Appellant’s vehicle was not running when emergency 

personnel arrived, this fact alone is not determinative. See Commonwealth

v. Leib, 227, 588 A.2d 922, 924 (Pa.Super. 1991) (finding the appellant had 

actual physical control of his vehicle when he was found asleep in his car which 

was parked in the middle of the road with the engine off).
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For the foregoing reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/15/2020