J-S58023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT WINOWITCH, JR.                      :
                                               :
                       Appellant               :   No. 387 WDA 2018

            Appeal from the Judgment of Sentence February 15, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0007108-2017


BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MURRAY, J.:                            FILED OCTOBER 16, 2018

        Robert Winowitch, Jr. (Appellant) appeals from the judgment of

sentence imposed after the trial court convicted him of driving under the

influence of alcohol (DUI), public drunkenness, and related offenses.1

Appellant challenges the sufficiency of the evidence. Upon review, we affirm.

        Appellant was charged with a total of four offenses:          DUI, public

drunkenness, driving without a license, and driving while operating privilege

is suspended or revoked.2 The case proceeded to a bench trial on November


____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1), 18 Pa.C.S.A. § 5505.

2  75 Pa.C.S.A. §§ 1501(a), 1543(b)(1).      Appellant had two prior DUI
convictions within the past ten years, and four total DUI convictions in his
lifetime.
J-S58023-18


20, 2017.     The parties stipulated to the facts set forth in the affidavit of

probable cause attached to the criminal complaint. In the affidavit, Officer

Deppen stated that on April 29, 2017, he responded to a radio call about “a

suspicious occupied vehicle . . . parked in the Boston ball field parking lot” in

McKeesport, Pennsylvania.3          Affidavit of Probable Cause, 5/1/17.   Officer

Deppen averred:

       While I was en route to the location Ofc Huschak approached the
       vehicle because he could see there was a person slumped over in
       the driver’s seat.     Huschak was eventually able to awaken
       [Appellant] by repeatedly beating on the driver’s door window.
       With the driver’s door open Ofc Huschak could see that the
       dashboard lights were on. The vehicle was parked with the keys
       in the ignition and turned to on with the engine off. Ofc Huschak
       reached across the steering wheel to remove the keys from the
       ignition. At that time [Appellant] turned the ignition to off,
       removed the key, threw it on the passenger’s seat and denied they
       were in the ignition.

       Upon my arrival I could see the vehicle was parked crooked about
       2/3 of the way into the parking stall and about half way over the
       line. As I approached the vehicle I could smell the odor of an
       alcoholic beverage on [Appellant’s] breath from about 4 feet
       away. [Appellant] had red glassy eyes and slurred speech.
       [Appellant] is also hard of hearing so I yelled while speaking with
       him. I asked [Appellant] to step out of the vehicle to perform field
       sobriety testing. When [Appellant] exited the vehicle he had
       difficulty maintaining his balance and would sway from side to side
       while standing still.

Id.



____________________________________________


3 The record does not indicate the first name of either of the officers named
in the affidavit. Furthermore, the affidavit did not state the time of day the
officers encountered Appellant.


                                           -2-
J-S58023-18


      Officer Deppen administered the “horizontal gaze nystagmus,” “walk

and turn,” and “one leg stand” field sobriety tests to Appellant, all of which

indicated that Appellant was impaired. Id. Thereafter, Officer Deppen placed

Appellant under arrest.

      At trial, Appellant stipulated that two hours before the officer

encountered him, he made a cash withdrawal inside Rich’s Parkside Den, “an

establishment serving alcoholic beverages,” that was a short distance from his

parked car. N.T. Trial, 11/20/17, at 10-11. Appellant did not testify, but

presented photographs of the parking lot. Id. at 9. His attorney argued that

because the car’s engine was not on, Appellant did not have actual physical

control over the movement of the vehicle for purposes of the DUI statute. Id.

at 10-33. The court rejected this argument, and found that Appellant was

guilty of all charges.

      Appellant filed a petition for post-verdict relief, again arguing that he

did not have actual physical control over the movement of the vehicle because

the engine was not on. The trial court heard oral argument on January 19,

2018, but denied relief. On February 15, 2018, the court sentenced Appellant

to an aggregate term of 18 months of intermediate punishment and 3 years

of probation. Appellant filed a timely notice of appeal. Both the trial court

and Appellant have complied with Pa.R.A.P. 1925(b).

      On appeal, Appellant presents two sufficiency issues for our review:




                                     -3-
J-S58023-18


       WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
       LAW TO SUPPORT THE TRIAL COURT’S VERDICT OF GUILTY AS
       TO THE CHARGE OF DUI (75 PA.C.S.A § 3802 (a)(1))?

       WHETHER THE EVIDENCE WAS INSUFFICIENT AS A MATTER OF
       LAW TO SUPPORT THE TRIAL COURT’S VERDICT OF GUILTY AS
       TO THE CHARGE OF PUBLIC DRUNKEN[N]ESS (18 PA.C.S.A §
       5505))?

Appellant’s Brief at 4.

       Appellant first argues that the evidence was insufficient to support his

conviction of DUI, and again asserts the evidence did not establish that he

was in actual physical control of the movement of his car.          In support,

Appellant cites numerous Superior Court decisions addressing the sufficiency

of evidence for DUI, emphasizing that in Commonwealth v. Price, 610 A.2d

488 (Pa. Super. 1992), this Court held that actual physical control over a

vehicle was not established where the defendant had the key in his hand and

sat behind the wheel of a parked car and the engine was not running.

Appellant’s Brief at 15. Appellant also cites Commonwealth v. Byers, 650

A.2d 468 (Pa. Super. 1994).            In Byers, this Court determined that the

defendant did not have actual physical control where he was asleep in the

driver’s seat, the motor and headlights were on, and the car was in the parking

lot of a “lounge.” Appellant’s Brief at 15.4 Appellant argues: “As demonstrated

____________________________________________


4 Although Appellant discusses Commonwealth v. Wolen, 685 A.2d 1384
(Pa. 1996), he fails to mention that our Supreme Court in Wolen abrogated
Byers, reiterating that “[w]ith respect to what constitutes ‘actual physical
control’ in this Commonwealth, the courts have held that whether a



                                           -4-
J-S58023-18


by cases, through at least 2009, an officer who locates a suspect sleeping in

a car, even with the engine running, near an establishment that serves

alcoholic beverages, does not even possess reasonable grounds to believe the

person is in actual physical control of the vehicle.” Id. at 18, citing Solomon

v. Commonwealth, Dept. of Transp., 966 A.2d 640, 642 (Pa. Cmwlth.

2009).”5

       At the outset, we note our standard of review:

       When reviewing a sufficiency of the evidence claim, the appellate
       court must review all of the evidence and all reasonable inferences
       drawn therefrom in the light most favorable to the
       Commonwealth, as the verdict winner. Evidence will be deemed
       to support the verdict when it establishes each element of the
       crime charged and the commission thereof by the accused,
       beyond a reasonable doubt.

Commonwealth v. Toland, 995 A.2d 1242, 1245 (Pa. Super. 2010) (citation

omitted).



____________________________________________


person is in actual physical control of a motor vehicle is determined
based on the totality of the circumstances, including the location of the
vehicle, whether the engine was running and whether there was other
evidence indicating that the defendant had driven the vehicle at some point
prior to the arrival of police on the scene.” Wolen, 685 A.2d at 1385
(emphasis added).
5 Appellant refers to several Commonwealth Court cases, including Solomon,
which address whether a police officer had reasonable grounds to believe that
a motorist was in actual physical control of a vehicle while under the influence,
so as to support suspension of the motorist’s operating privileges for refusing
chemical test pursuant to 75 Pa.C.S.A. § 1547(b). These cases do not address
the sufficiency of evidence for a criminal conviction of DUI under 75 Pa.C.S.A.
§ 3802, and thus they are not authoritative in this case.


                                           -5-
J-S58023-18


      Significantly, Appellant disregards the trial court’s role as the factfinder

in this case.      “It is not within the province of this Court to re-weigh the

evidence     and    substitute   our   judgment   for   that   of   the   fact-finder.”

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (citations

omitted). With regard to Appellant’s DUI conviction, the Vehicle Code states:

      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.

See 75 Pa.C.S.A. § 3802(a)(1).

      Subsequent to the Price and Byers cases cited by Appellant, this Court

explained:

      “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.” “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.” A determination of actual
      physical control of a vehicle is based upon the totality of the
      circumstances. “The Commonwealth can establish through wholly
      circumstantial evidence that a defendant was driving, operating
      or in actual physical control of a motor vehicle.”

Toland, 995 A.2d at 1246 (citations omitted). “The concept of ‘actual physical

control’ involves the control of the movements of either the machinery of a

motor vehicle or of the management of the vehicle itself, without a

requirement that the entire vehicle be in motion.”             Commonwealth v.

Young, 904 A.2d 947, 955 (Pa. Super. 2006) (citation omitted).

                                         -6-
J-S58023-18


      As noted by the trial court, our Supreme Court has summarized

decisional authority of what constitutes “actual physical control” of a vehicle

under the DUI statute:

      Commonwealth v. Woodruff, 668 A.2d 1158 (Pa. Super. 1995)
      (actual physical control found where defendant’s car was on berm
      of the road fifty yards west of the store where he had purchased
      beer, the engine was running, the high beams were on and the
      car was protruding into traffic lanes); Commonwealth v. Trial,
      652 A.2d 338 (Pa. Super. 1994) (actual physical control found
      where defendant’s car was diagonally across a roadway,
      defendant was in the car with his seatbelt on, the parking lights
      were on and the keys were in the ignition in the “on” position,
      although the engine was not running); Commonwealth v.
      Wilson, 660 A.2d 105 (Pa. Super. 1995) (actual physical control
      found where defendant’s car was down an embankment by the
      roadside, no keys were found, but the hood of the car was still
      warm on a winter night); Commonwealth v. Leib, 588 A.2d 922,
      (Pa. Super. 1991) (actual physical control found where defendant
      was asleep in the car in the middle of the road with the engine
      off); Commonwealth v. Bobotas, 588 A.2d 518 (Pa. Super.
      1991) (actual physical control found where defendant was parked
      in an alley on his way home with his engine running);
      Commonwealth v. Crum, 523 A.2d 799 (Pa. Super. 1987)
      (actual physical control found where defendant was sleeping in his
      car on the side of the road with the engine and headlights on);
      Commonwealth v. Kloch, 327 A.2d 375 (Pa. Super. 1974)
      (actual physical control found where defendant was asleep behind
      the wheel of a car parked along the side of the highway,
      protruding into a traffic lane with the engine and headlights on) .
      . . ; cf. Commonwealth v. Price, 610 A.2d 488, 490 (Pa. Super.
      1992) (no actual physical control established where the defendant
      was sitting behind the wheel of a parked car; the engine was not
      running and the defendant had the keys in his hands).

Commonwealth       v.    Wolen,   685   A.2d   1384   (Pa.   1996)   (citations

reformatted).   See also Toland, 995 A.2d at 1246 (defendant in actual

physical control of vehicle where he was asleep in driver’s seat with motor

running and headlights on, car was parked in front of a store that did not sell

                                     -7-
J-S58023-18


beer, and cold, unopened six-pack of beer was in car).

      Instantly, the trial court referenced the aforementioned cases and

reasoned:

             This Court convicted [Appellant] based on the fact that he
      was found by police officers slumped over in the driver’s side of
      his vehicle. While the engine was not running, the keys were in
      the ignition and the ignition was in the “on” position. The
      dashboard lights were illuminated. [Appellant’s] vehicle was
      parked in a parking lot of a ball field near a bar, a bar [Appellant]
      conceded he entered prior to the police arriving on the scene. . . .
      The vehicle was parked in a crooked manner and was not within
      the lines designated for the parking spots. This Court believes the
      instant circumstances are similar to Trial and Wilson, above. The
      circumstantial evidence demonstrates that [Appellant] had, prior
      to police arrival, physically turned the ignition switch on to
      illuminate the lights within his vehicle while he was sitting behind
      the steering wheel. He then fell asleep while sitting in the driver’s
      seat. The location of the vehicle suggested that [Appellant] had
      driven the vehicle to the parking spot and, unfortunately, did not
      park within the lines designated for parking. Accordingly, this
      Court believes the evidence was sufficient to convict [Appellant]
      of driving under the influence.

Trial Court Opinion, 5/18/18, at 5-6.

      After reviewing all of the evidence in the light most favorable to the

Commonwealth, in conjunction with prevailing law, we discern no basis upon

which to disturb the trial court’s findings. We emphasize that in Trial, this

Court affirmed the determination that the defendant was in actual physical

control of his vehicle where, similar to the instant case, the engine was off but

the keys were in the ignition and turned to the “on” position. See Trial, 652

A.2d at 340. As the Commonwealth may show that a defendant was in actual

physical control of a motor vehicle “through wholly circumstantial evidence,”


                                      -8-
J-S58023-18


we affirm Appellant’s conviction of DUI. See Toland, 995 A.2d at 1246.

      In Appellant’s second issue, he challenges the sufficiency of the evidence

with respect to his conviction of public drunkenness.        The Crimes Code

provides:

      A person is guilty of a summary offense if he appears in any public
      place manifestly under the influence of alcohol or a controlled
      substance, as defined in . . . The Controlled Substance, Drug,
      Device and Cosmetic Act, except those taken pursuant to the
      lawful order of a practitioner, as defined in The . . . Act, to the
      degree that he may endanger himself or other persons or
      property, or annoy persons in his vicinity. . . .

18 Pa.C.S.A. § 5505.

      Appellant asserts that the trial court appeared to “equate the possibility

of danger . . . with actual danger,” and that in this case, “[b]eing asleep in a

vehicle [when] the engine is not even running, creates no danger to anyone.”

Appellant’s Brief at 21. Appellant contends that he did not endanger himself

or other persons or property. The trial court disagreed. It reasoned:

      It is clear from the record that the evidence adduced at trial
      sufficiently demonstrated that [Appellant] was intoxicated to such
      a degree that he was a danger to himself or other persons or
      property. The record clearly indicates that [Appellant] failed
      multiple field sobriety tests while has was slumped over and
      intoxicated in the driver’s seat of his automobile. The fact that he
      was endangering himself or other persons or property is magnified
      by the fact that the ignition was in the “on” position and the
      vehicle could have easily been shifted into gear by involuntary
      movements of [Appellant] while he was passed out drunk. He was
      in a public parking lot after having left a bar. This Court views
      this evidence as sufficient that he was guilty of public
      drunkenness.

Trial Court Opinion, 5/18/18, at 7-8.


                                     -9-
J-S58023-18


      While emphasizing that he was asleep, Appellant disregards the trial

court’s reference to Appellant’s contemporaneous intoxication while seated in

his automobile in a public parking lot with the keys engaged in the vehicle’s

ignition.   Viewing this evidence in the light most favorable to the

Commonwealth, we are not persuaded by Appellant’s second sufficiency claim

regarding public drunkenness.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




                                   - 10 -
