Com. v. Polka, J. ( 2021 )

J-S55002-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEREMIAH POLKA :
:
Appellant : No. 156 WDA 2020
Appeal from the Judgment of Sentence Entered September 24, 2019
In the Court of Common Pleas of Armstrong County
Criminal Division at No(s): CP-03-CR-0000792-2018
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED FEBRUARY 05, 2021
Jeremiah Polka appeals from his judgment of sentence of twenty-four
to sixty months of imprisonment imposed after a jury convicted him of
multiple counts of driving under the influence (“DUI”). We affirm.
The trial court offered the following summary of the evidence offered at
Appellant’s trial:
At approximately 4:00 a.m. on the morning of August 26,
2018, Pennsylvania State Troopers Peter Schultz (“Schultz”) and
Kalee Wietrzykowski (“Wietrzykowski”) were dispatched to an
area near [the] intersection of Route 66 and Dime Road in Bethel
Township, Armstrong County. An individual called 911 and
reported seeing [Appellant] in his vehicle. Trooper Schultz stated,
“I was dispatched to a possible disabled motorist for a welfare
check of an individual.” The caller left the scene in his own vehicle
after briefly making contact with the troopers. Once the caller
departed Trooper Schultz testified that “I observed the silver
vehicle with two tires on the roadway. They were approximately
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S55002-20
one and half to two feet to the right of the fog line, so it is clearly
on the roadway.” The keys were in the ignition and the motor was
running. Schultz went on to testify that he
walked up to the driver’s side of the vehicle where I
observed [Appellant] seated in the driver’s seat, head
slouched down towards his chest. He was not
responsive. I knocked on the window. He did not
wake up. I had to open up the driver’s side door
where I shook him. He was extremely cold to the
touch. He did not wake up. I had to perform a
sternum rub. I am not sure what kind of condition he
is in. I smelled a strong odor of an alcoholic beverage
emanating from the vehicle. His breath was
extremely shallow at the time.
Trooper Schultz noted that once he was able to rouse [Appellant]
and get him out of the vehicle he could “observe, right in the
center console, in plain view, without looking hardly at all, was
two marijuana smoking devices and small bag of suspected
marijuana.” Trooper Schultz also found a cooler full of unopened
beer in the backseat. Schultz further testified “I did not observe
any empty containers leading up to vehicle, in the vehicle, or
around the vehicle.”
Once [Appellant] was out of the vehicle, Trooper Schultz
attempted a field sobriety test known as the lack of convergence
test, and noted, “he wasn’t able to focus on my finger, so it did
not go well at all.” [Trooper] Schultz also testified that once
[Appellant] was out of the vehicle there was still an odor of alcohol
and that “he was a little disheveled. His movements were slow
and sluggish.” [Appellant] also made statements to Trooper
Schultz “about his driving that night, him driving to the scene.”
[Appellant] stated that he believed he was on State Route 85
coming from Plumville. However, [Appellant] was approximately
20 miles away from where he believed he was.
Trooper Wietrzykowski also testified during the jury trial.
She testified that she was “dispatched for a suspicious vehicle to
check on the welfare of an operator sleeping behind a running
vehicle. The call came in as a Honda running, operator asleep.”
In her testimony, she noted that [Appellant] was unable to walk
appropriately and that she smelled an alcoholic beverage on his
breath and that he had red eyes. Trooper Wietrzykowski
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performed the standardized field sobriety tests on [Appellant].
Specifically she performed the horizontal gaze nystagmus, the
walk and turn, and the one -leg stand. He performed “extremely
poor” on the walk and turn, exhibiting seven out of eight cues.
She was unable to complete the one leg stand. [Appellant] also
made several statements to the trooper while at the scene. “He
stated ‘I am going to be DUI and I have THC in my system.’”
[Appellant] also made statements to Trooper Wietrzykowski about
him driving.
Q. Did [Appellant] ever make a statement to you
concerning how his vehicle got to where it was?
A. He did. He made multiple statements. The one
was in regards to him pulling over. When we were
leaving, he –
Q. What do you mean when you were leaving?
A. When we were en route back to the hospital, Mr.
Polka stated, “Oh, at least I pulled over.” I believe
something along those lines the MVR stated.
Q. How about when he was outside of the police
vehicle still in handcuffs. Did he make any statements
around that time about pulling over?
A. He did, yes. He stated that he didn’t want - along
the lines of he did not want to go out again because it
was no fun. Then he stated that he pulled over. It
was more or less, “Well, at least I pulled over.” I don’t
remember the exact verbiage. He did state that he
pulled over.
[Appellant] was transported to Armstrong County Memorial
Hospital where he consented to a legal blood draw. After testing,
it was determined that [Appellant] had a BAC of .168 percent and
he tested positive for methamphetamine and THC, both the active
and inactive metabolites.
[Appellant] testified during the trial as well. He stated that
while there was much he could not remember about the evening
in question, he did recall that it was not him, but rather a woman
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named “Amanda” who drove the vehicle to where it was located
by the troopers. After an evening of drinking at various bars and
restaurants in the Armstrong County area she drove his vehicle,
and left him in the location where he was observed by the 911
caller. [Appellant] made no mention of this woman to either
trooper at the scene.
Trial Court Opinion, 3/25/20, at 2-4 (cleaned up).
Based upon this evidence, the jury found Appellant guilty of DUI—
highest rate of alcohol, and several other DUI counts. The trial court
sentenced Appellant as indicated above on the highest-rate count, and
imposed no further penalty for the other convictions. Appellant filed a timely
post-sentence motion, and, following its denial, a timely notice of appeal.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for our review:
1. Were inferences as to whether it was [Appellant] or
Amanda who drove [Appellant]’s car to the vacant lot “more likely
than not to flow from the proved fact on which it is made to
depend”?
2. Did the Commonwealth prove that [Appellant]’s
vehicle was actually on a “highway or trafficway,” an element of
the offense[,] under 75 Pa.C.S. § 102?
Appellant’s brief at 3.
Since Appellant’s questions both challenge the sufficiency of the
evidence to sustain his convictions, we will address them together. The
following principles govern our review:
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
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a reasonable doubt. In applying the above 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. Reed, 216 A.3d 1114, 1119 (Pa.Super. 2019) (internal
quotation marks omitted).
Appellant was found guilty of violating each of the following provisions
of the DUI statute:
(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.
(d) Controlled substances.—An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle under any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance . . .;
(ii) Schedule II or Schedule III controlled substance
. . . which has not been medically prescribed for the
individual; or
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(iii) metabolite of a substance under subparagraph (i)
or (ii).
....
(3) The individual is under the combined influence of alcohol
and a drug or combination of drugs to a degree which
impairs the individual’s ability to safely drive, operate or be
in actual physical control of the movement of the vehicle.
75 Pa.C.S. § 3802.
While each of these offenses requires the individual to have operated or
been in actual physical control of a vehicle, it does not require proof that the
vehicle was ever in motion under the defendant’s control. See, e.g.,
Commonwealth v. Young, 904 A.2d 947, 954 (Pa.Super. 2006). To satisfy
this element of the offense, the Commonwealth must only establish, beyond
a reasonable doubt, that the defendant controlled “either the machinery of the
motor vehicle or the management of the vehicle’s movement[.]”
Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa.Super. 2005).
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. 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[.]
Young, supra at 954 (cleaned up).
Further, since DUI is classified as a “serious traffic offense,” it must
occur upon a “highway” or “trafficway.” See Commonwealth v. Lees, 135
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A.3d 185, 189 (Pa.Super. 2016) (citing 75 Pa.C.S. §§ 3101(b), 3802(a)).
Those terms are defined as follows:
“Highway.” The entire width between the boundary lines of every
way publicly maintained when any part thereof is open to the use
of the public for purposes of vehicular travel. The term includes
a roadway open to the use of the public for vehicular travel on
grounds of a college or university or public or private school or
public or historical park.
....
“Trafficway.” The entire width between property lines or other
boundary lines of every way or place of which any part is open to
the public for purposes of vehicular travel as a matter of right or
custom.
75 Pa.C.S. § 102. Nonetheless, “Pennsylvania law recognizes that roadways
in private areas, or areas restricted to permit-holders, can still meet the ‘public
use’ requirement for purposes of Sections 3101, 102 and the DUI statute.”
Lees, supra at 189 (collecting cases holding that private parking areas are
“trafficways”).
In the case sub judice, Appellant attacks the Commonwealth’s proof
both as to his diving the vehicle at all, and to his being in control of the vehicle
on a highway or trafficway. He asserts that the “vacant lot” where he was
found was not a highway or trafficway. Thus, the Commonwealth offered no
direct evidence that Appellant had been in control of the vehicle while under
the influence. See Appellant’s brief at 12-13.
Further, Appellant claims, the Commonwealth produced no
circumstantial evidence to establish that he had driven the vehicle before the
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troopers encountered him. He maintains that without evidence as to how
Appellant traveled to the “vacant lot” where he was found, the jury had to
engage in impermissible speculation to decide whether he or “Amanda” drove
the vehicle to that location. Id. at 10. Appellant contends that the jury could
not reasonably infer that he had been the driver, as the Commonwealth
established that he had been deeply unconscious, and after he was revived
with difficulty by the troopers, he believed himself to be in a location twenty
miles from where he actually was with no recollection how he got there or into
the driver’s seat. Id. at 10-11.
Upon review of the Commonwealth’s evidence, we conclude that
Appellant’s arguments are entirely without merit. As the trial court
summarized, the Commonwealth offered proof that Appellant
was found in the driver seat of his vehicle, with the engine
running, with two [of] its tires on the shoulder of the road.
Furthermore, [Appellant] stated that “at least he pulled over” on
more than occasion. The troopers reported that there were no
empty beer cans or liquor bottles that would support drinking after
arriving at the location.
Trial Court Opinion, 3/25/20, at 8.
First, this evidence, supported by the certified record before us, was
sufficient to allow a jury to conclude that the Commonwealth established
beyond a reasonable doubt that Appellant drove his car to the spot where he
was found, and that his self-serving testimony that someone else drove him
there was not credible. See, e.g., Reed, supra at 1119 (“[T]he finder of fact
while passing upon the credibility of witnesses and the weight of the evidence
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produced, is free to believe all, part or none of the evidence.”) (cleaned up)).
Aside from Appellant’s admissions that he drove, it was entirely proper for the
jury to infer that the reason Appellant thought he was twenty miles away from
where he was found, and had no recollection of how he got there, was not
because “Amanda” drove him there and then departed, but because Appellant
was so highly intoxicated. It was through reasonable inferences, not
speculation, that the jury concluded that Appellant had driven under the
influence on the roadway before pulling over and falling asleep.
Second, the Commonwealth’s proof included direct evidence that
Appellant was in control of his vehicle on a trafficway. Troopers Schultz and
Wietrzykowski both testified that they encountered Appellant unconscious in
the driver’s seat of the vehicle while the engine was running. See N.T. Trial,
7/10/19, at 7-8, 40-42. We have held that such evidence establishes actual
physical control for purposes of the DUI statute. See Commonwealth v.
Toland, 995 A.2d 1242, 1246 (Pa.Super. 2010) (holding evidence that the
defendant was “asleep in the driver's seat of the vehicle with the motor
running and the headlights illuminated” established that he was in actual
physical control of the movement of the vehicle).
Furthermore, the Commonwealth offered testimony and photographic
evidence that the spot where Appellant was found was not some private
“vacant lot,” but an area open to public use. The Commonwealth’s Exhibits 2
and 3 clearly show, respectively, the area in question during daylight hours,
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and the position of Appellant’s vehicle, with two wheels on the asphalt and
two wheels on the roadside:
N.T. Trial, 7/10/19, at 13-15; Exhibits 2 and 3 (license plate redacted). This
was sufficient evidence to establish that the troopers encountered Appellant
on a trafficway. See Commonwealth v. Yaninas, 722 A.2d 187, 189
(Pa.Super. 1998) (holding evidence was sufficient where the Commonwealth
established that the defendant was found asleep behind the wheel of a car
stopped on the berm of the road); Commonwealth v. Crum, 523 A.2d 799,
800 (Pa.Super. 1987) (same).
Thus, we conclude that the Commonwealth offered sufficient evidence
to allow the jury to conclude beyond a reasonable doubt that, while under the
influence, Appellant both drove his vehicle on a roadway or trafficway before
the troopers arrived, and that they found him in control of the vehicle on a
trafficway. Consequently, no relief is due.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2021
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