J-S05007-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
JUSTIN JAMES ROZNOWSKI,                  :
                                         :
                 Appellant               : No. 1857 WDA 2013

         Appeal from the Judgment of Sentence October 24, 2013,
                Court of Common Pleas, Allegheny County,
            Criminal Division at No. CP-02-CR-0013058-2012

BEFORE: DONOHUE, SHOGAN and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                      FILED JANUARY 30, 2015

     Justin James Roznowski (“Roznowski”) appeals from the October 24,

2013 judgment of sentence entered by the Allegheny County Court of

Common Pleas following his conviction of driving while his operating

privilege is suspended or revoked, 75 Pa.C.S.A. § 1543(b)(1). 1 On appeal,

he challenges the sufficiency of the evidence to support his conviction. Upon

review, we affirm.

     The trial court provided the following summary of the pertinent facts:

              On July 21, 2012, Officer Mark Wolfe was
           patrolling the area of State Route 910 and Pierce Mill
           Road in his capacity as a patrolman for the Northern


1
   The Commonwealth initially also charged Roznowski with two counts of
driving under the influence of alcohol and one count of false reports to law
enforcement authorities.     On October 1, 2013, the trial court granted
Roznowski’s motion to suppress the breathalyzer results obtained on the
night of his arrest, following which the Commonwealth nol prossed these
additional charges.
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          Regional Police Department. (T.R. 10/1/13, pp. 4-5).
          While so doing, he noticed a vehicle stopped on the
          side of the road near this intersection. (T.R. 10/1/13,
          p. 5). He pulled behind the vehicle and initiated
          contact with the unknown male sitting in the driver’s
          seat. (T.R. 10/1/13, p. 6). During the suppression
          hearing, Officer Wolfe identified the unknown male
          from the vehicle that night as [Roznowski]. (T.R.
          10/1/13, p. 6).

              On the night in question, Officer Wolfe asked
          [Roznowski] for his driver’s license. [Roznowski]
          responded that he did not have the license with him.
          (T.R. 10/1/13, p. 7). Officer Wolfe was able to
          identify [Roznowski] by his name and date of birth,
          and his computer check of [Roznowski] revealed that
          his license was suspended due to a DUI. (T.R.
          10/1/13, p. 7). Officer Wolfe questioned [Roznowski]
          as to where he had been before his interaction with
          the officer. [Roznowski] stated that he had been at
          work at Applebee’s Restaurant in Richland, PA and
          was headed to a friend’s home to collect some
          money that the friend owed him. He was sitting
          alongside the road because he had run out of gas.
          (T.R. 10/1/13, pp. 7, 15). Officer Wolfe then advised
          [Roznowski] that his license was DUI suspended. At
          that point, [Roznowski] claimed that his mother had
          been driving the vehicle that night. (T.R. 10/1/13, p.
          8).

              The only person present when Officer Wolfe
          approached the vehicle was [Roznowski], and the
          officer had not seen anyone else walking near the
          roadway before he stopped to speak to [Roznowski].
          (T.R. 10/1/13, p. 10). The officer noted that the
          passenger seat had a large amount of clothing on it,
          and that the back seat was also strewn with clothing
          and several other items. (10/1/13, pp. 8-9). There
          was a basketball on the floor below the passenger
          seat as well. (T.R. 10/1/13, p. 9). The officer
          testified that it would have been difficult for a person
          to sit in the passenger seat. (T.R. 10/1/13, p. 8).




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               After [Roznowski] informed the officer that his
            mother was driving, Officer Wolfe requested that
            [Roznowski] call his mother so that the officer could
            speak to her. (T.R. 10/1/13, p. 9). When
            [Roznowski] phoned his mother, he asked her to tell
            the officer that she had been driving. (T.R. 10/1/13,
            p. 9, 19). When Officer Wolfe spoke with
            [Roznowski]’s mother, he noted the sound of barking
            dogs in the background and asked if she was at
            home. She responded that she was, and that her
            husband was going to get gas for [Roznowski]. (T.R.
            10/1/13, pp. 9-10). [Roznowski]’s mother informed
            the officer, when asked, that she was driving the
            vehicle that night. (T.R. 10/1/13, pp. 11, 19, 21).
            However, [Roznowski]'s mother would not sign a
            written statement acknowledging that she was the
            driver. (T.R. 10/1/13, pp. 22-23).

                [Roznowski] was placed in custody by Officer
            Wolfe. (T.R. 10/1/13, p. 11). He was asked by the
            officer where the keys to the car were, and
            [Roznowski] responded that his mother had them
            and that he did not know where they were. (T.R.
            10/1/13, p. 9). However, the keys were found under
            a pile of clothes on the passenger side of the vehicle,
            within arm’s reach of the driver’s seat. (T.R.
            10/1/13, p. 8). A pat down of [Roznowski] after his
            arrest also revealed his driver’s license, which was
            located in his pants pocket. (T.R. 11). The officer and
            [Roznowski] were on scene for over twenty (20)
            minutes, during which time no one arrived with gas
            for [Roznowski]’s vehicle. (T.R. 10/1/13, p. 13).

Trial Court Opinion, 9/18/14, at 2-5.

      The case proceeded to a bench trial on October 24, 2013. Roznowski’s

mother failed to appear to testify. The trial court denied his request for a

postponement, observing that it was his third request and that his mother

likewise had not appeared at the last scheduled trial date.           Roznowski




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agreed to incorporate the transcript from the suppression hearing and

presented no additional evidence or testimony.      The trial court found him

guilty and sentenced him to sixty to ninety days of incarceration.

      Roznowski filed a timely notice of appeal and both Roznowski and the

trial court complied with Rule of Appellate Procedure 1925. He raises one

issue for our review on appeal:     “Was the evidence insufficient to prove,

beyond a reasonable doubt, that [] Roznowski drove the vehicle, as required

by 75 Pa.C.S.A. § 1543(b)(1), where the engine was off, the internal and

external lights were off, the keys were not in the ignition, and no one

observed him drive?” Roznowski’s Brief at 4.

      Appellate review of a challenge to the sufficiency of the evidence is de

novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). “[O]ur

scope of review is limited to considering the evidence of record, and all

reasonable inferences arising therefrom, viewed in the light most favorable

to the Commonwealth as the verdict winner.”            Id. at 420-21.      “The

Commonwealth may sustain its burden by means of wholly circumstantial

evidence.”    Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014)

(citation and quotation omitted).     “Further, we note that the entire trial

record is evaluated and all evidence received against the defendant is

considered, being cognizant that the trier of fact is free to believe all, part,

or none of the evidence.” Id. It is for the finder of fact to pass upon the




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credibility   of   the   witnesses   and    weight   of   the   evidence   presented.

Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014).

      Roznowski does not contend that the car was not driven that evening

or that his license was not suspended.               Rather, Roznowski raises his

sufficiency claim solely based upon the Commonwealth’s alleged failure to

prove that he drove the vehicle.           Roznowski’s Brief at 10.    According to

Roznowski, the evidence presented did not support a finding that he was

driving at the time Officer Wolfe approached his vehicle, and there was no

evidence presented to contradict his and his mother’s statements to the

police that his mother was the person driving the vehicle on the night in

question. Id. at 15-16.

      The trial court found that the Commonwealth presented sufficient

circumstantial evidence that Roznowski was the person who drove the

vehicle. Trial Court Opinion, 9/18/14, at 8. It found “that Officer Wolfe was

a credible and reliable witness[] who accurately described the events of July

21, 2012,” and that “[Roznowski] was not believable and credible in what he

told the officer that night.” Id. at 8-9.

      The record reflects that Officer Wolfe observed Roznowski sitting in the

driver’s seat of the vehicle on the side of the road. N.T., 10/1/13, at 5, 6.

He told the officer that he had just left Applebee’s, where he worked, and

was on his way to see a friend that owed him money, when he ran out of

gas. Id. at 7. He initially made no mention of another person having been



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in the vehicle with him. It was not until Officer Wolfe confronted him with

the fact that his license was suspended that Roznowski stated that his

mother had been the person driving. Id. at 8.

      Roznowski told Officer Wolfe that his mother was getting gas for the

car and had taken the keys with her when she left.        Id. at 8-9.   When

Roznowski called his mother at Officer Wolfe’s request, however, the officer

learned that Roznowski’s mother was at home. Id. at 9-10. Officer Wolfe

subsequently discovered the keys on the front passenger seat of the car

within arm’s reach of Roznowski.     Id. at 8.   Roznowski also initially told

Officer Wolfe that he did not have his license, but this too was found to be

untrue – Roznowski had his license in his pocket. Id. at 7, 11.

      Roznowski spoke with his mother on the phone before Officer Wolfe

did and Officer Wolfe heard him say, “[T]ell the police that you were

driving.” Id. at 9. Roznowski’s mother did as her son instructed, but when

she picked him up at the police station, she refused to provide a written

statement indicating that she was driving on the night in question.     Id. at

22-23. Furthermore, there was “a very large amount of clothing” covering

the passenger seat of the car, and there was a basketball on the floor in

front of the passenger seat, which would have made it difficult for a person

to sit comfortably as a passenger in the vehicle. Id. at 8.

      Viewing the evidence in the light most favorable to the Commonwealth

as we are required, we conclude that Officer Wolfe’s testimony, if believed,



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supports a finding that Roznowski drove the vehicle prior to it coming to rest

on the side of the road. Thus, the sufficiency of the evidence in this case

boils down to the trial court’s perception of Officer Wolfe and the testimony

he provided, and as stated above, the trial court found that he testified

credibly and reliably. Trial Court Opinion, 9/18/14, at 8.

               [Q]uestions of credibility and conflicts in the
            evidence presented are for the trial court to resolve,
            not our appellate courts.... As long as sufficient
            evidence exists in the record[,] which is adequate to
            support the finding found by the trial court, as
            factfinder, we are precluded from overturning that
            finding and must affirm, thereby paying the proper
            deference due to the factfinder who heard the
            witnesses testify and was in the sole position to
            observe the demeanor of the witnesses and assess
            their credibility.

Commonwealth v. Myers, 722 A.2d 649, 651-52 (Pa. 1998) (citation

omitted). We therefore have no basis to overturn Roznowski’s conviction.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/30/2015




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