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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHEN KERSTETTER
Appellant No. 2114 MDA 2013
Appeal from the Judgment of Sentence entered November 4, 2014
In the Court of Common Pleas of Centre County
Criminal Division at No: CP-14-CR-0829-2012
BEFORE: OTT, STABILE, and JENKINS, JJ.
MEMORANDUM BY STABILE, J.: FILED JANUARY 12, 2015
Appellant, Nathen Kerstetter, appeals from the November 4, 2014
judgment of sentence imposing five years of intermediate punishment for
driving under the influence (75 Pa.C.S.A. § 3802(d)(1)(i)) and consecutive
one year sentences for possession of a controlled substance (35 Pa.C.S.A.
§ 780-113(a)(16)) and possession of drug paraphernalia (35 Pa.C.S.A.
§ 780-113(a)(32)). We affirm.
On October 25, 2011 at approximately 12:10 p.m., William Bain
(“Bain”), an employee of Remodeler’s Workshop in Centre County,
Pennsylvania observed Appellant sitting in his pickup truck in the store’s
parking lot. N.T. Trial, 9/3/13, at 3-4. Appellant’s vehicle was not parked
within a marked parking spot. Id. Appellant was holding his head and
appeared to be in distress, so Bain approached Appellant’s vehicle and asked
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Appellant if he needed help. Id. at 4. Appellant did not respond
immediately, but eventually stated that he needed help. Id. at 4-5.
Appellant opened the door to his truck and vomited. Id. at 5. Bain testified
that Appellant’s vehicle had been in the parking lot for only a short time, as
Bain heard Appellant’s vehicle arrive thirty to forty-five seconds after
another vehicle departed. Id. at 4, 8. Bain was able to hear Appellant’s
vehicle arrive because of loud music emanating from the vehicle. Id. at 7-8.
Trooper Mathias G. Schmotzer (“Schmotzer”), the first police officer to
arrive at the scene, testified that Appellant was on a gurney when
Schmotzer arrived, in preparation for transport by ambulance to a hospital.
Id. at 11. Schmotzer observed Appellant crying, vomiting and expressing
fear of imminent death. Id. Schmotzer noticed a “moderate” odor of
alcohol on Appellant. Id. at 13. Appellant’s speech was slurred and his eyes
were bloodshot. Id. at 14. Appellant told Schmotzer he was sick because
he drank some beer and smoked some “Mr. Nice Guy:”
Q. When you were speaking to [Appellant], did he tell
you – I believe you already testified, did he tell you specifically
what he had taken?
A. I can’t remember. Without looking at my report, I
can’t remember. He said he either took Mr. Nice Guy or bath
salts and had drank beer. He said he got sick and pulled into
the parking lot. And I asked, “Well, what are you sick from?”
and that’s when he said that he drank some beer and either took
or smoked Mr. Nice Guy or bath salts or something like that,
something of that nature. I’m not sure the wording of it,
though.
Id. at 15 (emphasis added).
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Schmotzer testified that Appellant’s truck keys were in the truck’s
ignition, and that the truck was not parked within a marked parking spot.
Id. at 18. Rather, it was parked perpendicular to the marked parking stalls.
Id. at 19. The engine was not running. Id. at 24. A search of the vehicle
revealed several open and closed packets of synthetic marijuana. Id. at 19.
Police also recovered a smoking pipe. Id. at 28-29. The parties stipulated
that residue from the smoking pipe and packages tested positive for AM
2201, commonly known as synthetic marijuana or bath salts, which is an
analogue of JWH-019, a schedule 1 controlled substance. Id. at 33-34.
Appellant consented to a blood draw. Id. at 17. His blood tested positive
for AM-2201. Id. at 18.
Appellant testified in his own defense. Appellant claimed he packed
the pipe and smoked it after he pulled into the Remodeler’s Workshop
parking lot and turned his keys to the accessory position. Id. at 36.
Appellant testified he had an immediate adverse reaction to the substance.
Id. at 36-37. Appellant testified he became very ill within thirty seconds of
smoking the Mr. Nice Guy. Id. at 37. He also testified that it took him
twenty seconds to pack the substance into the smoking pipe. Id. Appellant
claimed he never smoked synthetic marijuana before and was unaware of its
effects. Id. at 38. Appellant purchased the synthetic marijuana at an
establishment called Dragon Chaser in State College, Pennsylvania. Id. at
15.
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At the conclusion of the September 3, 2013 nonjury trial, the court
found Appellant guilty of the aforementioned offenses. In this timely appeal,
he argues the Commonwealth produced insufficient evidence to support his
DUI conviction.1 Specifically, Appellant argues the record does not contain
sufficient evidence that he was in actual physical control of his vehicle after
he became intoxicated.2 He argues that the record does not contain
sufficient evidence to support an inference that he was intoxicated before he
stopped his car in the Remodeler’s Workshop parking lot.
Our standard of review is well-settled:
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1
Appellant has abandoned his challenge to the trial court’s denial of his pre-
trial motion to suppress evidence. Appellant’s Brief at 18-19.
2
Section 3802(d) provides as follows:
§ 3802. Driving under influence of alcohol or
controlled substance.
[. . .]
(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, as defined in the
act of April 14, 1972 (P.L.233, No.64), known as The
Controlled Substance, Drug, Device and Cosmetic Act;
75 Pa.C.S.A. § 3802(d)(1)(i).
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A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to support
the verdict when it establishes each material element of the
crime charged and the commission thereof by the accused,
beyond a reasonable doubt. Where the evidence offered to
support the verdict is in contradiction to the physical facts, in
contravention to human experience and the laws of nature, then
the evidence is insufficient as a matter of law. When reviewing a
sufficiency claim[,] the court is required to view the evidence in
the light most favorable to the verdict winner giving the
prosecution the benefit of all reasonable inferences to be drawn
from the evidence.
Commonwealth v. Thompson, 93 A.3d 478, 489 (Pa. Super. 2014).
In his brief, Appellant cites several cases delineating the circumstances
under which a defendant is, or is not, in actual physical control of a vehicle.
In Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), for
example, this Court found sufficient evidence where the defendant was
asleep in the driver’s seat of a running vehicle and had a cold, unopened six
pack of beer in the car. Id. at 1246. In other words, those facts sufficiently
supported an inference that the defendant was in actual physical control of
the vehicle. Appellant also cites Banner v. Commonwealth of
Pennsylvania Dep’t of Transp., 737 A.2d 1203 (Pa. 1999), in which the
defendant was sleeping in a passenger seat of a car parked alongside a
road. Id. at 1204. The keys were in the ignition but the car was not
running. Id. Our Supreme Court held that the arresting officer lacked
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reasonable grounds to believe the defendant was in actual physical control of
the vehicle. Id. at 1207.3
We believe these cases are largely inapposite here. Appellant does not
dispute that he drove his pickup truck into the Remodeler’s Workshop
parking lot. Rather, he claims he was sober when he drove into the parking
lot and ingested the synthetic marijuana afterward. He also claims the
synthetic marijuana immediately made him ill. We must discern whether the
record supports the trial court’s finding that Appellant was intoxicated before
he parked his car in the Remodeler’s Workshop Parking lot. In this regard,
the trial court found:
Appellant testified he did not consume the synthetic
marijuana until after he had pulled into the parking lot of
Remodeler’s Workshop. This Court, however, did not find
Appellant’s testimony to be credible. Appellant testified he
pulled into the parking lot, parked his vehicle, turned his keys to
‘accessory mode’, opened the package of synthetic marijuana,
prepared the pipe, lit the pipe, took three hits of synthetic
marijuana, and almost immediately thereafter became violently
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3
As Banner involved a license suspension, the Supreme Court did not
apply the sufficiency of the evidence standard of review quoted in the main
text. The Banner Court did not analyze whether the record contained
sufficient evidence to establish beyond a reasonable doubt that the
defendant was in actual physical control of the vehicle. Rather, the Court
determined “whether the factual findings of the trial court are supported by
competent evidence and whether the trial court committed an error of law or
abuse of discretion.” Id. at 1205. Likewise, the Court analyzed whether the
arresting police officer had probable cause to conclude that the defendant
was in actual physical control of the vehicle. Id. at 1207. Given our
conclusions in the main text that Appellant actually drove the vehicle while
under the influence of synthetic marijuana, the distinctions between Banner
and the instant case do not affect our result.
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ill. If this Court were to believe Appellant’s testimony, these
actions all would have had to have taken place in the
approximately 45-60 seconds during which [Bain] observed
Appellant in his vehicle, as [Bain] noticed Appellant’s vehicle
immediately after it parked across the spaces in the lot and
testified he watched Appellant for 45-60 seconds before deciding
to offer assistance to Appellant. This Court did not find
Appellant’s testimony credible and therefore relied on the
credible testimony of both [Bain] and Trooper Schmotzer to
conclude beyond a reasonable doubt that Appellant pulled into
the parking lot of Remodeler’s Workshop because he became ill
from smoking the synthetic marijuana prior to or while driving.
Trial Court Opinion, 1/8/14, at 4.
In summary, the trial court found Schmotzer and Bain credible and
determined that their testimony provided sufficient evidence to convict
Appellant. The trial court found Appellant’s version of events not credible.
Drawing inferences in favor of the Commonwealth, as we must, we conclude
that the record contains sufficient circumstantial evidence that Appellant was
intoxicated before he parked at the Remodeler’s Workshop. In light of this
conclusion, we need not analyze whether Appellant remained in actual
physical control of his vehicle after he parked it and turned the key to the
accessory position.
We further reject Appellant’s argument that the doctrine of mutually
exclusive inferences applies here because the record equally supports two
inferences, one being that he was intoxicated prior to arriving at
Remodeler’s Workshop and the other that he became intoxicated afterward.
See Commonwealth v. Crompton, 682 A.2d 286, 289 (Pa. 1996)
(“[W]hen a party on whom the burden of proof rests, in either a civil or
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criminal case, offers evidence consistent with two opposing propositions, he
proves neither.”). In Crompton, the Commonwealth produced a single
police officer to testify about the execution of a search warrant. Id. at 288-
89. On cross-examination, the officer rendered an account of his actions
that directly contradicted his direct testimony. Id. at 289. Viewed in
isolation, either account would have triggered an exception to the knock and
announce rule. Id. Viewed as a whole, however, the officer’s testimony
gave rise to two mutually exclusive possibilities. Id. Since the officer was
the Commonwealth’s sole witness, his testimony was insufficient to prove
either. Id.
Crompton is inapposite. Here, unlike Crompton, the Commonwealth
produced several witnesses and physical evidence supporting its case. The
trial court found Appellant’s testimony – that he loaded the pipe, smoked it,
and became dangerously intoxicated after he parked his truck – lacking in
credibility. Since no evidence other than Appellant’s testimony supported
Appellant’s account of events, and since the Commonwealth offered
consistent evidence from several sources, the doctrine of mutually exclusive
inferences is inapplicable here. In asking us to deem that evidence
insufficient on appeal, Appellant is asking us to draw an inference against
the Commonwealth. Our standard of review expressly forbids that action,
and we therefore conclude that Appellant’s argument does not merit relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2015
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