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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ALEX HENRY HORVATINOVIC,
Appellant No. 1279 MDA 2015
Appeal from the Judgment of Sentence March 30, 2015
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0006946-2013
BEFORE: LAZARUS, STABILE, and DUBOW, JJ.
MEMORANDUM BY STABILE, J.: FILED OCTOBER 14, 2016
Appellant, Alex Henry Horvatinovic, appeals from the March 30, 2015
judgment of sentence entered in the Court of Common Pleas of York County
(“trial court”) following his convictions of DUI: Controlled Substance-
Schedule I, Second Offense, and DUI: Controlled Substance-Schedule I, II,
or III, Second Offense.1 Appellant challenges the sufficiency and weight of
the evidence. Upon review, we affirm.
In the early morning hours of May 25, 2013, several officers of the
Northern York County Regional Police Department, including Zachary Grey,
were operating a DUI checkpoint on North George at Sixth Avenue in North
York Borough, York Pennsylvania. N.T. Jury Trial, 1/9/15, at 49, 52. Officer
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1
75 Pa.C.S.A §§ 3802(d)(1)(i) and 3802(d)(1)(iii), respectively.
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Grey interacted with a red Hyundai Elantra at approximately 1:54 a.m.. Id.
at 52, 53. Officer Grey identified Appellant as the driver of the vehicle. Id.
at 54. The officer working the line approached Officer Grey with Appellant.
Id. Appellant admitted drinking a beer and two shots of Jameson about 30
minutes before speaking to Officer Grey. Id. at 55. Upon completion of the
field sobriety tests, Officer Grey arrested Appellant, took him to central
booking, and asked him to submit to a chemical test of his blood. Id. at 60.
Appellant agreed to submit to a chemical test. Id. Officer Grey was
continually in the presence of Appellant between the initial interaction and
the blood draw. Id. at 61. Appellant did not have anything to eat or drink
during the period between the field sobriety tests and the blood draw. Id.
at 61. The blood draw occurred at 2:44 a.m.. Id. at 66. Ayako Chan-
Hosokawa, a forensic toxicologist at NMS Laboratories, testified about the
blood testing procedures and results. See generally id. at 95-127.
The active ingredient in marijuana, Delta-9 THC, was found in the
Appellant’s blood sample at a concentration of 13 nanograms per milliliter.
Id. at 124-25. Delta-9 Carboxy THC, a final product after either smoking or
ingesting marijuana, was found in Appellant’s blood at a concentration of 90
nanograms per milliliter. Id. at 124. Additionally, 11-Hydroxy Delta-9 THC
was found in Appellant’s blood at a concentration of 5.1 nanograms per
milliliter. Id. Delta-9 Carboxy THC and 11-Hydroxy Delta-9 THC are
metabolites of marijuana. Id. at 125. Ms. Chan-Hosokawa testified that
marijuana can enter the bloodstream via inhalation or orally. Id. at 154.
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When marijuana is inhaled it can enter the bloodstream within a minute;
when marijuana is consumed orally, it takes a little longer, possibly within
15 minutes.2 Id. at 154-55.
A jury trial was held on January 9, 2015. The jury found Appellant
guilty of DUI: Controlled Substance-Schedule I, Second Offense, and DUI:
Controlled Substance-Schedule I, II, or III, Second Offense.3 Appellant was
found not guilty of DUI-Controlled Substance Combination of Drug and
Alcohol.4 On March 30, 2015, the trial court sentenced the Appellant to 60
days of incarceration at the York County Prison, followed by 90 days of
house arrest with alcohol monitoring, and five years of probation. This
appeal followed.
On appeal, Appellant raises four issues:
I. Whether there was insufficient evidence to support
the Jury’s finding of guilt for DUI, Controlled
Substance, because the Commonwealth failed to
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2
This Court notes the Commonwealth’s improper citation to the N.T. Jury
Trial, and its assertions of facts that do not exist in the record. For example,
in its brief, the Commonwealth states, “Ms. Chan-Hosokawa concluded that
the results are consistent with [Appellant] smoking marijuana approximately
one to two hours prior to his blood draw, and before [Appellant] drove to the
checkpoint.” Appellee’s Brief at 10. The page number where Ms. Chan-
Hosokawa testified about the timing of marijuana in the bloodstream occurs
on pages 154-55 not page 152. Furthermore, Ms. Chan-Hosokawa did not
testify that Appellant smoked marijuana approximately one to two hours
prior to his blood draw.
3
75 Pa.C.S.A §§ 3802(d)(1)(i) and 3802(d)(1)(iii), respectively.
4
75 Pa.C.S.A. § 3802(d)(3).
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establish whether there was a controlled substance
in [Appellant’s] blood at the time of driving and
whether [Appellant] drove the vehicle?
II. Whether there was insufficient evidence to support
the Jury’s finding of guilt for DUI, Controlled
Substance, because the Commonwealth failed to
establish whether [Appellant] drove the vehicle?
III. Whether the Jury’s verdict is against the weight of
the evidence when the Commonwealth’s expert could
not render an opinion as to whether there was a
controlled substance in [Appellant’s] blood at the
time of driving?
IV. Whether the Jury’s verdict is against the weight of
the evidence when the Commonwealth failed to
establish whether [Appellant] drove the vehicle?
Appellant’s Brief at 7.
This Court’s standard of review for sufficiency of the evidence is well
established.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. 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.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super.
2013)). Pennsylvania’s DUI statute provides in relevant part:
An individual may not drive, operate or be in actual
physical control of a vehicle under any of the following
circumstances:
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(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, and
Cosmetic Act. . . .
(iii) metabolite of a substance under
subparagraph (i) or (ii).
75 Pa.C.S.A. § 3802(d)(1). To establish guilt, the Commonwealth must
prove that the Appellant was (1) driving, operating, or be in actual physical
control of a vehicle, and (2) there was a Schedule I controlled substance in
the Appellant’s blood or for the metabolite offense, a metabolite thereof.
As the Appellant’s first two arguments contain significant overlap, this
Court will address them together. Appellant’s argument is that there was
insufficient evidence to show that Appellant was in actual physical control of
the vehicle. “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.” Commonwealth v. Young, 904 A.2d 947,
954 (Pa. Super. 2006). “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. Williams, 941 A.2d 14, 27 (Pa. Super. 2008)
(citation omitted). “A determination of actual physical control of a vehicle is
based upon the totality of the circumstances.” Commonwealth v.
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Williams, 871 A.2d 254, 260 (Pa. Super. 2005) (citation omitted). “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.”
Commonwealth v. Brotherston, 888 A.2d 901, 905 (Pa. Super. 2005)
(citation omitted).
In Commonwealth v. Lehman, 820 A.2d 766 (Pa. Super. 2003), this
Court found that the defendant was in actual physical control of a vehicle
when at approximately 4:30 a.m. he was found slumped over in the driver’s
seat with the engine running, headlights on, and parked perpendicular to the
road. Lehman, 820 A.2d at 773. The Court reasoned “[i]t was apparent
appellant had driven to that location after having imbibed.” Id.
In Young, a witness observed the defendant standing near the
driver’s side door moments after the vehicle crashed, the vehicle was
registered to the defendant, the officer discovered the keys in the
defendant’s pocket, and the car’s placement indicated it had been driven.
Young, 904 A.2d at 955. A panel of this Court found that there was ample
circumstantial evidence to establish that defendant was in actual physical
control of the vehicle. Id.
It is clear upon a review of the totality of the circumstances that there
was sufficient evidence establishing that Appellant was operating the vehicle.
Appellant’s red Hyundai Elantra was stopped at a DUI checkpoint. An
individual does not appear at a DUI checkpoint without having been in
control of a vehicle. Officer Grey was given custody of Appellant by the line
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officer at the DUI checkpoint for further examination. Viewing the evidence
in the light most favorable to the Commonwealth, including the location of
the vehicle, the circumstances surrounding the encounter with Officer Grey,
and Officer Grey’s identification of Appellant, sufficient circumstantial
evidence existed to establish that Appellant drove the vehicle. Appellant’s
argument fails.
Next, the Appellant argues that there was insufficient evidence to
establish whether there was a controlled substance in his blood at the time
of driving. As this Court has previously noted,
the Vehicle Code precludes an individual from operating a
motor vehicle with any amount of scheduled controlled
substance, or a metabolite thereof, in the driver’s blood.
Because marijuana is a Schedule I controlled substance,
the Vehicle Code prohibits an individual from operating a
vehicle after consuming any amount of marijuana.
Commonwealth v. Jones, 121 A.3d 524, 529 (Pa. Super. 2015) (citation
omitted) (emphasis in original). As discussed above, Appellant first
interacted with Officer Grey at 1:54 a.m. and subsequently has his blood
drawn at 2:44 a.m.. During this time, Appellant did not consume any food
or beverages, and was continually in the presence of Officer Grey. The
results of the blood tests showed that Delta 9-THC, a main ingredient of
marijuana was found in the Appellant’s bloodstream. Additionally, Delta-9
Carboxy THC and 11-Hydroxy Delta-9 THC, two metabolites of marijuana,
were found in Appellant’s bloodstream. As Appellant did not consume any
marijuana while at the DUI checkpoint, there was sufficient evidence to find
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that the Appellant had marijuana and metabolites of marijuana in his system
while he was operating a motor vehicle. Appellant’s argument fails.
Appellant’s final two claims are challenges to the weight of the
evidence. In reviewing a claim challenging the weight of the evidence,
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation
omitted). Moreover, a weight of the evidence claim “concedes that there is
sufficient evidence to sustain the verdict.” Commonwealth v. Smith, 853
A.2d 1020, 1028 (Pa. Super. 2004) (citation omitted).
Appellant asserts that because Ms. Chan-Hosokawa was unable to
determine exactly when Appellant ingested marijuana, the verdict was
against the weight of the evidence. Officer Grey testified that he was with
Appellant from his time at the DUI checkpoint at 1:54 a.m. until the blood
draw at 2:44 a.m.. During such time, Appellant did not consume any food
or beverages. Furthermore, the results of the blood tests showed that Delta
9-THC, Delta-9 Carboxy THC, and 11-Hydroxy Delta-9 THC, were found in
Appellant’s bloodstream. Additionally, Ms. Chan-Hosokawa testified that
marijuana ingested via inhalation can enter the bloodstream within a minute
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and marijuana ingested orally can enter the bloodstream within fifteen
minutes. Based upon the testimony of Officer Grey and Ms. Chan-
Hosokawa, the trial court did not abuse its discretion when it found the
verdict was not against the weight of the evidence. Appellant’s argument
fails.
Finally, Appellant asserts that the verdict was against the weight of the
evidence because the Commonwealth failed to establish whether Appellant
drove. As discussed above, based upon the testimony of Officer Grey, there
was circumstantial evidence to establish that Appellant was in actual physical
control of the vehicle. Therefore, the trial court did not abuse its discretion
when it found the verdict was not against the weight of the evidence.
Appellant’s argument fails.
In conclusion, this Court finds that there was sufficient evidence to
justify the verdicts and the trial court did not abuse its discretion when it
found the verdict was not against the weight of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/14/2016
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