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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
MARIA DANIECE STARVIS :
: No. 1295 MDA 2017
Appellant
Appeal from the Judgment of Sentence June 28, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007679-2015
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED JANUARY 30, 2018
Maria Daniece Starvis (“Appellant”) appeals from the judgment of
sentence entered after the trial court convicted her of driving under the
influence (“DUI”) of a controlled substance (marijuana).1 Upon review, we
affirm.
The trial court detailed the underlying facts as follows:
In a Non-Jury trial, the Commonwealth presented one
witness, who was Trooper Raymond Rutter of the
Pennsylvania State Police. At the time of the nonjury trial,
Trooper Rutter had worked since 2013 for the Pennsylvania
State police, where he was trained about driving under the
influence, including ARIDE, and training on standardized
field sobriety tests. The trooper had been a part of over 100
DUI investigations, and had made around 80 arrests for
DUI. The trooper explained that he looked at the totality of
the circumstances and used his training and experience
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1 75 Pa.C.S.A. § 3802(d)(2).
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when investigating a DUI. The totality of the circumstances
refers to the vehicle's motions, such as weaving, going off
the road, crossing either the left or right lines, varying
speeds, as well as the officer's interactions with the driver.
When the officer interacts with the driver, there are several
different things that may indicate DUI, including field testing
results, glassy and bloodshot eyes, drug or alcohol odors,
slurred speech and other interactions during the stop.
The trooper testified that at 2:15 a.m. on September
21, 2015, the trooper was driving on Interstate 83 when he
observed Appellant's vehicle weaving back and forth. He
followed the vehicle and observed it crossing the fog line
four times and observed its speed varying. Then, the
trooper conducted a stop, suspecting a DUI. Appellant was
the driver of the vehicle.
When the trooper interacted with [Appellant], he
observed that she had dilated pupils, and bloodshot, glassy
eyes. He also smelled a strong odor of marijuana coming
from the vehicle. During his testimony, the trooper
explained that the bloodshot, glassy eyes can indicate
impairment from marijuana.
Then, the trooper asked Appellant about her
marijuana use. At first, Appellant said that it had been a
few months since she last smoked marijuana. Next,
Appellant said she had smoked marijuana earlier that day.
Then, when the trooper asked how many hours ago she
smoked, Appellant said four hours, but then she added "two
songs." The trooper assumed Appellant may have been
referencing karaoke or songs as a time frame, though he
was unsure what she meant by the time frame of “two
songs."
Based on the totality of the circumstances, the trooper
arrested Appellant for suspicion of DUI and transported her
for blood draw. Specifically, the trooper indicated that the
totality of the circumstances suggested that she was under
the influence of marijuana.
Field sobriety tests were performed, though some
were not done or were modified because Appellant had
recent surgery on her leg and because she had a rod in her
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leg. Specifically, the trooper administered the modified
Romberg and lack of convergence tests.
In the modified Romberg test, the trooper told
Appellant to tilt her head back with her eyes closed and,
then, when she estimated the 30 seconds was over, to bring
her head down and tell the trooper to stop. For suspected
marijuana use, the officer looks for whether the eyelids
flutter as well as the variation from the 30 seconds during
that test. When Appellant performed the test, she stopped
at 44 seconds, rather than 30 seconds. This indicated to the
trooper that there was some impairment.
Then, the lack of convergence test was performed.
During the lack of convergence test, the officer looks for
whether or not the eyes converge when the officer brings a
pen or finger doing circles slowly into the nose's bridge. In
other words, the test is to see if the eyes cross. During the
test, the officer observed a lack of convergence in that
Appellant's right eye did not converge, which further
indicated to the officer that there was impairment.
[Appellant was charged with DUI and proceeded to a
bench trial.] During the non-jury trial, the dashcam video
was played, which showed the Appellant's vehicle crossing
the fog line several times as well as the field sobriety
testing.
Trial Court Opinion, 10/5/17, at 2-6 (citations to notes of testimony and
footnotes omitted).
At the conclusion of trial on June 1, 2017, the trial court found Appellant
guilty of DUI under Section 3802(d)(2).2 On June 28, 2017, the trial court
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2 Section 3802(d)(2) states in relevant part:
(d) Controlled substances – An individual may not drive,
operate or be in actual physical control of the
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sentenced Appellant to 72 hours to six months’ imprisonment, and imposed a
$1,000 fine and court costs. Appellant filed a timely post-sentence motion on
June 29, 2017, in which she challenged the weight of the evidence and
requested a new trial. The trial court denied Appellant’s motion on July 24,
2017, and Appellant filed this timely appeal. Both Appellant and the trial court
have complied with Pa.R.A.P. 1925.
Appellant presents a single issue for our review:
Whether the trial court erred in denying [Appellant’s]
challenge to the weight of the evidence where the
Commonwealth may have shown ingestion of marijuana but
failed to prove any actual impairment in light of her driving,
coherence, and cooperation.
Appellant’s Brief at 4.
Appellant argues that the trial court erred in denying her post-sentence
motion, and claims her DUI conviction was contrary to the weight of the
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movement of a vehicle under any of the following
circumstances:
...
(2) The individual is under the influence of 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.A. § 3802(d)(2).
The trial court nolle prossed counts 1 and 2, DUI under Sections 3802(d)(1)(i)
and 3802(d)(1)(iii), respectively, and found Appellant not guilty of counts 4
and 5, summary traffic offenses. See N.T., 6/1/2017, at 39.
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evidence. Our standard of review for whether a verdict is against the weight
of the evidence is well settled:
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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and
internal citations omitted). A “true weight of the evidence challenge concedes
that sufficient evidence exists to sustain the verdict but questions which
evidence is to be believed.” Commonwealth v. Thompson, 106 A.3d 742,
758 (Pa. Super. 2014) (internal citation omitted). To prevail on a weight of
the evidence challenge, “the evidence must be so tenuous, vague, and
uncertain that the verdict shocks the conscience of the court.”
Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015) (internal
quotations and citations omitted), appeal denied, 138 A3d 4 (Pa. 2016).
This Court must consider whether the trial court’s decision constituted a
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palpable abuse of discretion.3 Where the record adequately supports the trial
court, the trial court has acted within the limits of its judicial discretion.
Appellant argues that the weight of the evidence shows that although
she may have smoked marijuana, such consumption did not impair her
driving. Appellant’s Brief at 12. Appellant further contends that the “[f]ootage
of her driving shows no serious infractions, she was coherent and cooperative
after being pulled over, and the tests that purportedly established impairment
were not standardized and were performed by an officer who was not a drug
recognition expert.” Id.
In arguing that the trial court abused its discretion, Appellant relies, in
part, upon this Court’s decision in Commonwealth. v. Etchison, 916 A.2d
1169 (Pa. Super. 2007). Appellant contends that Etchison requires proof of
actual, present impairment, and that “evidence of marijuana ingestion is not
enough to sustain a conviction like [hers].” Appellant’s Reply Brief at 1.
Appellant further relies on our recent decision in Commonwealth v. Gause,
164 A.3d 532, 537 (Pa. Super. 2017), appeal denied, 173 A.3d 267 (Pa.
2017). She attempts to discredit, inter alia, her “eyelid tremors and
perception of time during the Romberg test” and the opinion of “a non-expert
in drug recognition,” by citing several secondary sources that address the
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3 An abuse of discretion may be found when the trial court reaches a
manifestly unreasonable judgment, misapplies the law, or bases its decision
on partiality, prejudice, bias, or ill-will. See, e.g., Clay, 64 A.3d at 1056.
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supposed “peculiarities of marijuana intoxication.” See Appellant’s Brief at
13-15; Appellant’s Reply Brief at 3-6. The Commonwealth responds that
Appellant “makes light of the substantial amount of evidence presented to
establish her impairment,” and argues that Appellant attempts to challenge
the sufficiency of the evidence.4 Brief of Commonwealth at 18. We agree that
Appellant fails to articulate a viable weight claim.
A new trial is warranted only when the verdict is so contrary to the
evidence that it shocks one's sense of justice. See, e.g., Commonwealth v.
Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016) (internal quotations and
citations omitted), appeal denied, 145 A.3d 724 (Pa. 2016). Here, the trial
court found no merit to Appellant’s weight claim, and explained:
[T]his court found that there was evidence of driving
impairment based on the trooper’s testimony and the
dashcam video. While Appellant was driving, she was
weaving to the extent that she crossed over the line multiple
times, and her speed varied. Contrary to Appellant’s
argument, one turn signal and pulling over does not mean
she was not impaired. Those actions mean she had some
presence of mind to use a turn signal and not flee—plenty
of DUI drivers obey some of the traffic laws and some pull
over without fleeing. However, they are still impaired. In
addition, during the stop, the trooper asked her several
times when she had last smoked, and her third answer was
four hours and then “two songs” which did not make much
sense to the trooper, or to the [trial c]ourt for that matter.
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4 Appellant responds to the Commonwealth’s assertion: “To be clear, it is a
weight claim. This is because there is evidence in the record that, if properly
credited and accorded significance, would indicate impairment: [Appellant’s]
admitted ingestion of marijuana; her performance on the tests [Trooper]
Rutter administered; and her minor driving infractions.”” Appellant’s Reply
Brief at 4.
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. . . Rather than focusing solely on the Romberg test, this
[c]ourt had also taken a look at the totality of the
circumstances in finding Appellant guilty of driving under the
influence.
Trial Court Opinion, 10/5/17, at 8-9 (emphasis original).
It is well settled that the trial court, as factfinder, is free to believe all,
part, or none of the evidence adduced at trial. See, e.g., Konias, 136 A.3d
at 1022. The trial court in this case found Trooper Rutter’s testimony to be
credible. Because the trial court’s credibility determinations are supported by
the record, we will not disturb them on appeal.
For the above reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/18
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Com. v. Starvis, M.
Combined Opinion