J-A19035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                   Appellee                :
                                           :
             v.                            :
                                           :
LANCE STEPHEN JABLONSKI,                   :
                                           :
                   Appellant               :          No. 1258 WDA 2014

        Appeal from the Judgment of Sentence entered on July 29, 2014
             in the Court of Common Pleas of Armstrong County,
                 Criminal Division, No. CP-03-CR-0000750-2012

BEFORE: BENDER, P.J.E., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                        FILED AUGUST 31, 2015

        Lance Stephen Jablonski (“Jablonski”) appeals from the judgment of

sentence entered following his conviction of driving under the influence of

alcohol-highest rate of alcohol (“DUI”).1      We vacate the judgment of

sentence.

        On July 18, 2012, while on routine patrol at 2:00 a.m., Parks Township

Police Sergeant John Arce (“Sergeant Arce”) observed a blue Dodge Durango

parked in the parking lot of the Slovak Club, with its engine running.2 After

parking his police vehicle behind Jablonski’s vehicle, Sergeant Arce observed

1
    75 Pa.C.S.A. § 3802(c).
2
  The Parks Township Municipal Building is directly adjacent to the Slovak
Club. Trial Court Opinion, 5/9/14, at 1. Because of its location, members of
the public must traverse the Slovak Club’s parking lot to access the
municipal building. Id. As a result, Parks Township entered into an
agreement whereby Parks Township paid the Slovak Club $200 per year for
public use of the parking lot to conduct business at the Municipal Building.
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Jablonski in the driver’s seat of the locked vehicle, with his head slumped

and eyes closed.      Sergeant Arce identified himself and tapped on the

window. After several unsuccessful attempts to get Jablonski’s attention,

Jablonski opened the driver’s door and exited the vehicle. Jablonski failed

several field sobriety tests administered by Sergeant Arce.        Jablonski was

placed under arrest and transported to the Leechburg Police Station. At the

police station, Jablonski’s blood alcohol content was found to be 0.169%.

      In its Opinion, the trial court also set forth the following relevant facts:

      [Jablonski] had been drinking inside [of] the Slovak Club for an
      extended period of time. Later in the evening, he decided to
      leave the Club. The bartender told [Jablonski] to wait in his car
      and he would drive him home, but when the bartender left the
      Club, [Jablonski] was not in his vehicle. At some later point,
      [Jablonski] returned to his vehicle, sat in the driver’s seat, and
      started the engine.

Trial Court Opinion, 5/9/14, at 1-2.

      After a bench trial, the trial court found Jablonski guilty of DUI.

Thereafter, the trial court sentenced Jablonski to 72 hours to 6 months in

the county jail, plus a fine and costs. Jablonski filed a Post-Sentence Motion,

which the trial court denied.    Thereafter, Jablonski filed the instant timely

appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of

Matters Complained of on Appeal.

      Jablonski now presents the following claims for our review:

      I.    Whether the trial court should have granted [Jablonski’s]
            request for a not guilty verdict at trial[,] in that [Jablonski]
            was not in actual physical control of his motor vehicle as
            that term is defined in the Commonwealth?


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      II.   Whether a private club parking lot is a highway or traffic
            way sufficient to warrant a conviction for 75 Pa.C.S.A.
            § 3802?

Brief for Appellant at 5.

      Jablonski’s claims challenge the sufficiency of the evidence underlying

his conviction of DUI. When examining the sufficiency of evidence,

      [t]he standard we apply ... 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
      [this] test, we may not weigh the evidence and substitute our
      judgment for 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
      [finder] 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. Houck, 102 A.3d 443, 449 (Pa. Super. 2014) (quoting

Commonwealth v. Barnswell Jones, 874 A.2d 108, 120-21 (Pa. Super.

2005) (citation omitted)).

      Jablonski first claims that the evidence is not sufficient to sustain his

conviction where the Commonwealth failed to establish that he was in

physical control of the vehicle. Brief for Appellant at 12. Jablonski argues

that the trial court improperly failed to apply this Court’s definition of “actual


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physical   control   of   the   movement   of   a    vehicle,”   as   set   forth   in

Commonwealth v. Byers, 650 A.2d 468 (Pa. Super. 1994).                      Brief for

Appellant at 20.     Jablonski challenges the trial court’s reliance upon the

plurality decision of the Pennsylvania Supreme Court in Commonwealth v.

Wolen, 685 A.2d 1384 (Pa. 1996). Brief for Appellant at 20. According to

Jablonski, the trial court further erred in relying upon footnote 4 in Wolen,

which, Jablonski argues, was dicta. Id. Beyond the non-controlling nature

of dicta, in a plurality decision, Jablonski points out that in Wolen, the

Supreme Court addressed the adequacy of a jury instruction, whereas in

Byers, the Superior Court addressed the sufficiency of the evidence

underlying the appellant’s DUI conviction.          Id. at 18.    Thus, the cases

involved different standards of review. Id.

      Jablonski directs our attention to subsequent decisions wherein the

Superior Court applied the Byers test under the old DUI statute (75

Pa.C.S.A. § 3731) and the new DUI statute (75 Pa.C.S.A. § 3802). Brief for

Appellant at 20. Jablonski cites Commonwealth v. Brotherson, 888 A.2d

901 (Pa. Super. 2005), wherein this Court cited Byers as the controlling

standard to be applied. Brief for Appellant at 23.

      First, we are cognizant that in Wolen, the Opinion, authored by the

Honorable Ronald D. Castille, was not joined by a majority of the Supreme

Court. “When a court is faced with a plurality opinion, usually only the result

carries precedential weight; the reasoning does not.”        Commonwealth v.



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O.A., 717 A.2d 490, 496 n.4 (Pa. 1998).        Accord Commonwealth v.

Bethea, 828 A.2d 1066, 1073 (Pa. 2003).        Thus, regardless of whether

footnote 4 constitutes dicta, the reasoning set forth in the Opinion

announcing the decision of the Supreme Court is not precedential. See id.

     The Crimes Code defines the relevant offense of DUI as follows:

     (c) Highest rate of alcohol.—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 0.16%
     or higher 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(c).

     In Brotherson, this Court analyzed the “actual physical control”

component of the predecessor to Section 3802 as follows:

     “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.” Commonwealth v. Johnson, 2003 PA Super 354,
     833 A.2d 260, 263 (Pa. Super. 2003). “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. Woodruff, [] 447 Pa. Super. 222,
     668 A.2d 1158, 1161 (Pa. Super. 1995). A determination of
     actual physical control of a vehicle is based upon the totality of
     the circumstances. [Commonwealth v.] Williams, [2005 PA
     Super 105, 871 A.2d 254,] 259 [(Pa. Super. 2005)]. “The
     Commonwealth can establish[,] through wholly circumstantial
     evidence[,] that a defendant was driving, operating or in actual
     physical control of a motor vehicle.” Johnson, supra at 263.
     Actual physical control requires more than evidence of a motorist
     starting the engine to a parked vehicle.



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         Our courts, therefore, have properly focused on the
         danger that defendant poses to society in determining
         what constitutes actual physical control. This danger or
         threat to society is not shown merely by proving that
         defendant started the engine of a car. It is shown
         through a combination of the factors discussed above.
         The cases support the conclusion that a showing that an
         intoxicated defendant started a parked car, without more,
         is not enough to prove actual physical control. The
         Commonwealth must show some additional facts to
         illustrate that defendant was a danger to public safety.

      [] Byers, … 650 A.2d [at] 470[.]

Brotherson,    888    A.2d   at   904-05    (emphasis    added).      Accord

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

majority of cases, the suspect location of the vehicle, which supports an

inference that it was driven, is a key factor in a finding of actual control.”

Brotherson, 888 A.2d at 905 (citing Commonwealth v. Bobotas, 588

A.2d 518, 521 (Pa. Super. 1991) (finding actual physical control when the

defendant was found parked in an alley, where he had pulled over on the

way home, with the motor running); and Commonwealth v. Crum, 523

A.2d 799, 800 (Pa. Super. 1987) (finding actual physical control where

defendant was found sleeping in his parked car, along the side of the road,

with the headlights on and the motor running).

      At trial, Sergeant Arce testified that at about 2:00 a.m. on July 18,

2012, while driving on routine patrol, he observed Jablonski slumped over in

his vehicle, in the parking lot of the Slovak Club.     N.T., 4/16/14, at 5.

Sergeant Arce stated that as he approached Jablonski’s vehicle, he noticed



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that its engine was running. Id. at 6. Sergeant Arce stated that he knocked

on the driver’s side window several times. Id. at 7. Eventually, Jablonski

responded. Id. After several attempts, Jablonski unlocked his door. Id. at

8. According to Sergeant Arce, Jablonski’s eyes were glassy and he had a

hard time standing.     Id.     Sergeant Arce administered three field sobriety

tests, each of which Jablonski failed. Id. Sergeant Arce also testified that

although the Slovak Club is a private club, the municipality pays for the use

of its parking lot. Id. at 9.

      On cross-examination, Sergeant Arce admitted that he never saw the

vehicle move.     Id. at 10.      Sergeant Arce further stated that he never

observed Jablonski place his hands on the steering wheel or attempt to put

the vehicle in gear. Id. at 11. Sergeant Arce had no knowledge of how the

vehicle came to be in that location. Id. In addition, there was no evidence

that Jablonski had been drinking in his vehicle. Id. at 12. Finally, there was

no one else in the parking lot at that time. Id. at 13.

      This evidence, viewed in a light most favorable to the Commonwealth,

is not sufficient to sustain Jablonski’s conviction of DUI.    In Brotherson,

“[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 Appellant who had driven the car to that spot.”

Brotherson, 888 A.2d at 905. Here, the location of Jablonski’s vehicle does

not support an inference that an intoxicated Jablonski had driven the car.



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J-A19035-15

Without evidence that Jablonski had exercised actual physical control of the

movement of the vehicle, the evidence is not sufficient to sustain his

conviction of DUI. Accordingly, we vacate Jablonski’s judgment of sentence.

     Because of our resolution of Jablonski’s first claim, we need not

address his remaining claim.

     Judgment of sentence vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2015




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