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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GERALD KENNETH KRAUSE, JR.,                :
                                               :
                       Appellant               :       No. 476 MDA 2018

           Appeal from the Judgment of Sentence February 28, 2018
               in the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000333-2017

BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED DECEMBER 03, 2018

        Gerald Kenneth Krause, Jr. (“Krause”), appeals from the judgment of

sentence imposed following his convictions of driving under the influence of

alcohol (“DUI”), and the summary offense of driving under a DUI-suspended

license.1 We affirm.

        In the early morning hours of January 19, 2017, Pennsylvania State

Police Trooper Bruce Kleckner (“Trooper Kleckner”) began following a black

Dodge Durango headed westbound on Route 22 in Jonestown, Pennsylvania.

The Durango pulled off the road and stopped in the Jonestown Ag Supply

parking lot.    Trooper Kleckner turned his vehicle around and observed the

Durango for about five minutes. During this time, no one exited from the

Durango or opened its doors. At approximately 2:10 a.m., Trooper Kleckner

initiated a traffic stop and found that the sole occupant of the vehicle was
____________________________________________


1   See 75 Pa.C.S.A. §§ 3802(a)(2), 1543(b)(1.1)(i).
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Krause.   Krause was unable to provide his driver’s license and Trooper

Kleckner detected indicia of intoxication, i.e., an odor of alcohol, slurred

speech, and glazed over eyes. Krause admitted that he had been drinking

alcohol. Trooper Kleckner attempted to have Krause perform field sobriety

tests, which Krause was unable to complete due to a health condition. Trooper

Kleckner took Krause into custody and transported him to the Jonestown

Pennsylvania State Police Barracks, where a breath test administered at 2:48

a.m., indicated that Krause had a blood alcohol concentration (“BAC”) of

.083%. Krause’s license was under an alcohol-related suspension at the time

of the stop.

      After a bench trial, Krause was convicted of DUI and the summary

offense of driving under a DUI-suspended license. The trial court sentenced

Krause to five days to six months in prison and a $500 fine for the DUI

conviction, and a consecutive term of 90 days in prison and a $1,000 fine for

the DUI-suspended license conviction. Krause filed no post-sentence motions.

Rather, Krause filed a timely Notice of Appeal and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

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

      Whether the verdict of guilty on Counts 1 and 2, Driving Under
      the Influence of Alcohol was against the weight and sufficiency of
      the evidence and testimony presented at trial?

Brief for Appellant at 4.

      Krause challenges both the weight and the sufficiency of the evidence

in a single Argument section. Id. at 9-12. Specifically, Krause asserts that

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the Commonwealth did not present any evidence to prove that Krause was

driving the vehicle.    Krause alleges that a video he had unintentionally

captured on his cellphone during the incident proves that his son Derik, rather

than he, was driving the vehicle. Id. at 10, 12; see also id. at 10 (claiming

that Krause’s own testimony demonstrated that he was not driving the

vehicle); id. at 12 (claiming that the video was “uncontroverted” evidence

that Krause was not driving the car). Krause contends that the vehicle was

parked and the keys were not found at the time of the stop. Id. at 11.

      Initially, we note that it is improper to conflate weight and sufficiency

challenges. See Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.

2000) (highlighting the distinctions between the two motions and explaining

that “[a] motion . . . that the verdict is contrary to the weight of the evidence,

concedes that there is sufficient evidence to sustain the verdict.” (citation

omitted)). Regardless, Krause’s challenge to the weight of the evidence is

waived due to his failure to raise it before the trial court.                See

Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa. Super. 2017) (reciting

that “[a] challenge to the weight of the evidence must first be raised at the

trial level (1) orally, on the record, at any time before sentencing; (2) by

written motion at any time before sentencing; or (3) in a post-sentence

motion.” (citation and quotation marks omitted)); see also Pa.R.Crim.P. 607.

      When considering a challenge to the sufficiency of the evidence, the

standard we apply is




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      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. Johnson, 192 A.3d 1149, 1155 (Pa. Super. 2018)

(citation omitted).

      The Vehicle Code defines DUI, in relevant part, as follows:

      (a) General impairment.—

                           *            *            *

      (2) 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 alcohol concentration in the
      individual’s blood or breath is at least 0.08% but less than .10%
      within two hours after the individual has driven, operated or been
      in actual physical control of the movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(2).

      To   sustain    a   DUI   conviction   under   Section   3802(a)(2),   the

Commonwealth must prove that an individual’s BAC was at least 0.08% or

greater within two hours after the individual has last drove, operated, or been



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in actual physical control of a motor vehicle.       See id. § 3802(a)(2).

Additionally,

      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.

Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa. Super. 2010)

(citations and some quotation marks omitted).

      The Vehicle Code defines Driving under a DUI-suspended license, in

relevant part, as follows:

      (b) Certain offenses.—

                             *            *          *

      (1.1)(i) A person who has an amount of alcohol by weight in his
      blood that is equal to or greater than .02% at the time of testing
      . . . 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 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).




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      Under Section 1543(b)(1.1)(i), “[t]he Commonwealth need not produce

direct evidence of driving, but may instead rely on circumstantial evidence

creating the inference that the vehicle had been in motion in order to meet its

evidentiary burden.”     Commonwealth v. Herb, 852 A.2d 356, 361 (Pa.

Super.     2004)    (citation    omitted).      Additionally,   “[t]o    sustain   a

[Section] 1543(b) conviction, the Commonwealth must establish that the

defendant     had    actual     notice   that   his   license   was     suspended.”

Commonwealth v. Brewington, 779 A.2d 525, 527 (Pa. Super. 2001).

         Here, Trooper Kleckner testified that on January 19, 2017, he

encountered a Dodge Durango travelling westbound on Old Route 22. N.T.,

12/19/17, at 9. He observed the vehicle pull off the road and park in the

parking lot of the Jonestown Ag Supply.         Id. Trooper Kleckner turned his

vehicle around and continued to observe the Durango for a period of about 5

minutes. Id. at 10. During this time, he testified that he did not see anyone

leave the vehicle or any of its doors open. Id. at 10-11. Upon conducting the

vehicle stop, Trooper Kleckner testified that only Krause was inside the

vehicle. Id. 11-12. Trooper Kleckner also testified that the vehicle’s keys

were not absent, and that he did not search the vehicle for the keys. Id. at

22-23.

      Trooper Kleckner further testified that Krause had glazed over eyes,

slurred speech, and smelled of alcohol.         N.T., 12/19/17, at 13.       Krause

admitted that he had been drinking prior to the vehicle stop, id. at 26, and


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stipulated at trial to the result of the breath test, id. at 17, which was

conducted within two hours of the stop, id. at 16-17.         The breath test

determined that Krause’s BAC was .083%. Id. at 18-19. Krause testified

that, he was aware that his license was suspended at the time of the stop due

to a prior DUI, N.T., 12/19/17, at 25-26, and stipulated to the existence of

the suspension at trial, id. at 20.

      Here, the trial court found Trooper Kleckner’s testimony to be credible,

and Krause’s testimony and the video evidence to be not credible. See Trial

Court Opinion, 4/30/18, at 11-12; see also Johnson, 192 A.3d at 1155

(recognizing that “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.” (citation omitted)). This evidence, viewed in

a light most favorable to the Commonwealth, was sufficient to prove that

Krause was in control of the Durango at a time when his BAC exceeded the

statutory limit. See 75 Pa.C.S.A. § 3802(a)(2); see also Toland, 995 A.2d

at 1246. Further, the evidence was sufficient to prove that the Durango had

been in motion prior to the stop. See Herb, 852 A.2d at 361. Finally, the

evidence was sufficient to prove that Krause was driving the Durango at a

time when he had actual notice that his license was suspended.         See 75

Pa.C.S.A. 1543(b)(1.1)(i); see also Brewington, 779 A.2d at 527. Based

upon the foregoing, we conclude that the evidence is sufficient to support

Krause’s convictions.


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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/03/2018




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