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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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