J-S38040-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,            :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                  Appellee               :
                                         :
             v.                          :
                                         :
PHILLIP WLOCZEWSKI,                      :
                                         :
                  Appellant              :           No. 1305 MDA 2014

   Appeal from the Judgment of Sentence entered on July 22, 2014
            in the Court of Common Pleas of Berks County,
            Criminal Division, No. CP-06-CR-0001912-2013

BEFORE: WECHT, STABILE and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                          FILED JUNE 30, 2015

     Philip Wloczewski (“Wloczewski”) appeals from the judgment of

sentence imposed following his convictions of driving under the influence of

alcohol or controlled substance (“DUI”), driving while operating privilege is

suspended or revoked, and accidents involving damage to unattended

vehicle or property.   See 75 Pa.C.S.A. §§ 3802(c), 1543(b)(1.1)(i), 3745.

We affirm.

     On February 1, 2013, Florin Hrezdac (“Hrezdac”) saw Wloczewski

staggering towards the bar that Hrezdac owns.            Hrezdac prohibited

Wloczewski from entering the bar because he was too intoxicated. Hrezdac

then observed Wloczewski enter a nearby white Chevrolet van from the

driver’s side. Hrezdac called the police because he believed that Wloczewski

was intoxicated and incapable of driving safely. Hrezdac subsequently saw
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the van’s engine start and pull out of the parking lot. Hrezdac observed the

van strike a green Ford Taurus while leaving the parking lot.        Hrezdac

followed the van to its destination in his own car, after which, Hrezdac saw

Wloczewski exit the van from the driver’s side.

     Officer Michael J. Sansosti (“Officer Sansosti”) arrived at the scene and

saw Wloczewski fumbling for his keys in order to enter his residence. Officer

Sansosti smelled a strong odor of alcohol coming from Wloczewski. Officer

Sansosti noticed that Wloczewski seemed very disoriented and was urinating

and salivating on himself. Officer Sansosti also discovered that Wloczewski’s

license was suspended for a DUI-related offense. Wloczewski was taken into

custody and transported to St. Joseph’s Hospital, where he consented to

blood alcohol testing.   The results showed that his blood alcohol level

(“BAC”) was .307%.       The Commonwealth charged Wloczewski with the

above-described offenses.

     The case proceeded to a non-jury trial before the Honorable John

Boccabella on July 1, 2014.      Prior to trial, the parties stipulated that

Wloczewski’s BAC was .307%, and that the driver of the white van struck

two parked cars on February 1, 2013.1 Wloczewski was tried and convicted

of the above-mentioned charges. Judge Boccabella sentenced Wloczewski to

three to six months in prison for his DUI conviction, followed by a



1
 Officer Sansosti was informed that Wloczeski was identified in another hit-
and-run accident on February 1, 2013. Trial Court Opinion, 12/12/14, at 3.


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consecutive term of ninety days confinement on the suspended license

conviction.

      Wloczewski filed a timely Notice of Appeal.    The trial court ordered

Wloczewski to file a Pennsylvania Rule of Appellate Procedure 1925(b)

Concise Statement.     Wloczewski filed a timely Concise Statement and the

trial court issued an Opinion.

      On appeal, Wloczewski raises the following question for our review:

      Was the evidence in support of the charge for Driving Under the
      Influence of Alcohol or Controlled Substance in violation of 75
      P[a.C.S.A.] § 3802(c) (DUI-highest rate[)]; Driving While
      Operating privilege is Suspended or Revoked in violation of 75
      P[a.C.S.A.] § 1543[(b)(1.1)(i)] (driving while BAC was .02 or
      greater while license was suspended); and accidents involving
      another vehicle 75 Pa.C.S.A. § 3745 insufficient as a matter of
      law to support the convictions?

Brief for Appellant at 4.

       The standard of review for a sufficiency of the evidence claim is as

follows:

      When reviewing a sufficiency of the evidence claim, an appellate
      court, viewing all of the evidence and reasonable inferences in
      the light most favorable to the Commonwealth as the verdict
      winner, must determine whether the evidence was sufficient to
      enable the fact finder to find that all elements of the offense
      were established beyond a reasonable doubt.

Commonwealth v. Hawkins, 701 A.2d 492, 499 (Pa. 1997). Further, the

Commonwealth can sustain its burden of proving every element beyond a

reasonable doubt by using wholly circumstantial evidence. Commonwealth

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



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Wloczewski contends that the evidence was insufficient to support his DUI

conviction.2 Brief for Appellant at 10. He argues that the evidence failed to

demonstrate that he was actually operating the van.         Id. at 10, 12.

Wloczewski asserts that Hrezdac did not see Wloczewski in the driver’s seat

of the van at any time. Id. at 12. Wloczewski further claims that there was

a woman at the scene after the accident, and Hrezdac did not know whether

or not she had been in the van. Id. Wloczewski claims that the trial court

could infer from the woman’s presence that he was actually a passenger in

the van, and that the woman was the driver. Id.

      In order to sustain a conviction under 75 Pa.C.S.A. § 3802(c), the

Commonwealth must prove that the defendant was operating the vehicle

and that his BAC was greater than .16% within 2 hours of operating the

vehicle.   See 75 Pa.C.S.A. § 3802(c).     The term “operates” 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.    Johnson, 833 A.2d at 263.     In

order to find that a person had actual physical control of an automobile, a

combination of the following factors is required:   the motor running, the

location of the vehicle, and additional evidence showing that the defendant



2
  Wloczewski appeals all of his convictions, alleging that the evidence
was insufficient to demonstrate that he was operating the vehicle.
However, for ease of disposition, we will address this claim in the
context of the DUI conviction.


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was driving.    Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa.

Super. 2005).

      In   viewing   the   record   in    the   light   most   favorable   to    the

Commonwealth, the evidence was sufficient to support the verdict. Hrezdac

testified that he saw Wloczewski enter the driver’s side of the van.            N.T.,

7/14/14, at 5. Hrezdac then followed the van to its destination and only lost

sight of the van while he was stopped at a stop sign. Id. at 6. When the

vehicle reached its destination, Hrezdac saw Wloczewski exit the vehicle on

the driver’s side. Id. at 11. Officer Sansosti testified that when he arrived,

he saw Wloczewski fumbling with his keys. N.T., 7/1/14, at 9. He testified

that Wloczewski had a strong odor of alcohol on his breath, and was

salivating and urinating on himself.        Id.     After the police arrived and

Wloczewski had exited the vehicle, Hrezdac observed that a woman

appeared and offered to drive the car away. N.T., 7/14/14, at 11. While

Hrezdac and Officer Sansosti did not actually observe Wloczewski at the

wheel of the van while it was in motion, the circumstantial evidence, viewed

in the light most favorable to the Commonwealth, was sufficient to establish

that Wloczewski was driving the vehicle.

      Further, the parties stipulated that Wloczewski’s BAC was .307%,

within two hours of operating the van.            N.T., 7/1/14, at 7.   Thus, the

evidence, viewed in the light most favorable to the commonwealth, was

sufficient to prove both elements of 75 Pa.C.S.A. § 3802(c).



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Wloczewski also claims that since his license was only suspended for one

year in 2003, there is no evidence of record demonstrating that his license

was suspended on the evening in question.         Brief for Appellant at 13.

Therefore,   Wloczewski   argues,    his   conviction   under   75   Pa.C.S.A.

§ 1543(b)(1.1)(i) was not proper. Brief for Appellant at 13.

      Section 1543(b)(1.1)(i) states the following:

      A person who has an amount of alcohol by weight in his blood
      that is equal to or greater than .02%. . .who at the time of
      testing has in his blood any amount of a Schedule I or
      nonprescribed Schedule II or III controlled substance, as defined
      in the act of April 14, 1972 (P.L. 233, No. 64), known The
      Controlled Substance, Drug, Device, and Cosmetic Act, or its
      metabolite or who refuses testing of blood or breath and who
      drives a motor vehicle on any highway or trafficway of this
      Commonwealth at a time when the person’s operating privilege
      is suspended or revoked as a condition of acceptance of
      Accelerated Rehabilitative Disposition for a violation of section
      3802 or former section 3731 or because of a violation of section
      1547(b)(1) or 3802 or former section 3731 or is suspended
      under section 1581 for an offense substantially similar to a
      violation of section 3802 or former section 3731 shall, upon a
      first conviction, be guilty of a summary offense and shall be
      sentenced to pay a fine of $1,000 and to undergo imprisonment
      for a period of not less than 90 days.

75 Pa.C.S.A. § 1543(b)(1.1.)(i).

      Here, the Commonwealth presented evidence that Wloczewski’s

license had not been restored at the time of the incident. N.T., 7/1/14, at

11.   A driver who operates a vehicle while his license suspension has

expired, but whose license has not been restored, is prohibited from driving.

Commonwealth v. Williams, 872 A.2d 186, 188 (Pa. Super. 2005).




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Further, Wloczewski was operating the vehicle.          Thus, the evidence

supported the suspended license conviction.3

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/30/2015




3
  Wloczewski does not raise any claims regarding his conviction of accidents
involving damage to unattended vehicle or property. See Pa.R.A.P. 2119(a)
(stating that the argument section must have relevant discussion and
citations for all questions argued). Nevertheless, the parties stipulated that
the van hit the parked vehicles. N.T., 7/1/14, at 6. Also, as noted above,
the circumstantial evidence proves that Wloczewski was operating the van.


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