J-S67042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHERZOD HALDAROV                           :
                                               :
                       Appellant               :   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 post-

sentence 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




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