In the instant case Officer Muscareno
discovered Solomon at approximately 3:00 a.m. asleep, in the reclined driver’s seat
of his car, walking distance from a bar. Although the car was running, it is
undisputed that it was cold and snowing that evening. Officer Muscarnero testified
that he stopped because Solomon’s car was parked in a driving lane. Notes of
Testimony, January 8, 2008 (N.T.) at 5; Reproduced Record (R.R.) at 8a.
However, on cross examination Officer Muscarnero testified that it is common for
cars to park where Solomon was parked; specifically he stated “[t]hey do park
there for the club.” N.T. at 11; R.R. at 9a.
Given the totality of the circumstances, the evidence falls short to
support PennDOT’s argument that Solomon had exercised control over the
movement of the vehicle at the time he was intoxicated. See Banner. There was
no objective evidence presented to indicate Solomon had driven the vehicle at any
point prior to the arrival of the police. Accordingly, the trial court’s finding that
Officer Muscarnero did not have reasonable grounds to believe that Solomon was
in actual physical control of the movement of his vehicle was supported by