J-S78019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH JOSEPH TROUTMAN :
:
Appellant : No. 627 WDA 2017
Appeal from the Judgment of Sentence Entered March 23, 2017
In the Court of Common Pleas of Butler County Criminal Division at No(s):
CP-10-CR-0001045-2016
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED MARCH 26, 2018
Appellant, Kenneth Joseph Troutman, appeals from the March 23,
2017 Judgment of Sentence entered in the Butler County Court of Common
Pleas following his conviction of Driving Under the Influence—Controlled
Substance (“DUI”) and the summary offense of Signal Improper.1 On
appeal, Appellant challenges the sufficiency of the evidence in support of his
DUI conviction. After careful review, we affirm on the basis of the trial
court’s Opinion.
The facts, as gleaned from the record, are as follows. On February 23,
2016, Trooper Thomas Karlo of the Pennsylvania State Police observed
Appellant driving on State Route 28 in Buffalo Township, Butler County.
____________________________________________
1 75 Pa.C.S. § 3802(d)(1)(ii) and 75 Pa.C.S. § 3334(b).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S78019-17
Trooper Karlo observed Appellant change from the right lane to the left lane
after Appellant briefly activated his turn signal. He then observed Appellant
change back to the right lane. After returning to the right lane, Appellant’s
turn signal remained on for at least ten seconds. At that point, Trooper
Karlo activated his overhead lights and conducted a traffic stop.
Trooper Karlo approached the passenger side of Appellant’s vehicle
and asked Appellant for his documents and identification. As he did so,
Trooper Karlo noticed Appellant laughing, which he thought was odd, and
observed two pill bottles inside Appellant’s vehicle. Trooper Karlo observed
that Appellant’s pupils were extremely dilated and asked Appellant what
medications he was taking. Appellant replied that he was taking viibryd and
clonazepam,2 and indicated that he had taken a clonazepam prior to driving.
At Trooper Karlo’s request, Appellant agreed to undergo field sobriety
testing.
Based on Trooper Karlo’s observations of Appellant’s performance on
the tests, Trooper Karlo concluded Appellant had been driving under the
influence of a controlled substance. He placed Appellant in custody and
transported him to the Kittanning State Police Barracks.
At the Kittanning Barracks, Appellant agreed to undergo an evaluation
by Corporal Christopher Robbins, the Barrack’s Patrol Unit Supervisor and a
____________________________________________
2 Viibryd is an antidepressant and clonazepam is a sedative used to treat
seizures, panic disorder, and anxiety.
-2-
J-S78019-17
drug recognition expert. As part of the examination, Appellant admitted to
having taken medication. Corporal Robbins concluded after his examination
that Appellant was under the influence of a central nervous depressant or
depressants and was incapable of safely driving a vehicle. The
Commonwealth charged Appellant with the above offenses, as well as Failure
to Discontinue Signal and Careless Driving.3
Following a non-jury trial at which Trooper Karlo and Corporal Robbins
testified, the court convicted Appellant of DUI and Signal Improper. On
March 23, 2017, the court sentenced Appellant to serve six months’
intermediate punishment for the DUI conviction, the first 72 hours on house
arrest, and pay a fine of $1,000.00. The court imposed a sentence of 60
hours’ community service and a $25.00 fine for Appellant’s Signal Improper
conviction. This appeal followed.4
On appeal, Appellant challenges the sufficiency of the Commonwealth’s
evidence in support of his DUI conviction. Appellant’s Brief at 2. Appellant
baldly claims that Trooper Karlo’s testimony that Appellant left his turn
signal on for approximately ten to twelve seconds after changing lanes and
Corporal Robbins’ testimony that Appellant showed signs of being under the
____________________________________________
3 75 Pa.C.S. § 3334(d) and 75 Pa.C.S. § 3714(a), respectively.
4 Both Appellant and the trial court complied with Pa.R.A.P. 1925.
-3-
J-S78019-17
influence of a depressant do not comprise sufficient evidence to prove that
he was incapable of driving safely. Id. at 3-5.
To begin, we note our standard of review of a challenge to the
sufficiency of the evidence:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted).
Evidentiary sufficiency presents a question of law; thus, our standard
of review is de novo and our scope of review is plenary. Commonwealth v.
Johnson, 107 A.3d 52, 66 (Pa. 2014) (citation omitted).
A person commits the offense of DUI—Controlled Substance if he or
she is “under the influence of a drug or combination of drugs to a degree
which impairs [his or her] ability to safely drive, operate[,] or be in actual
physical control of the movement of the vehicle.” 75 Pa.C.S. §3802(d)(2).
Following our review of the Notes of Testimony, we conclude that the
Commonwealth adduced sufficient evidence from which the trial court,
sitting as fact-finder, could have concluded that Appellant was incapable of
safely operating his vehicle. The trial court authored a comprehensive
Opinion wherein it articulated the specific evidence upon which it based its
-4-
J-S78019-17
verdict, and we adopt that Opinion as our own and affirm the Judgment of
Sentence. See Trial Ct. Op., 5/25/17, at 3-5 (noting its conclusion that, in
light of the testimony of Trooper Karlo and Corporal Robbins, and Appellant’s
admission that he had taken prescription medications prior to driving, the
Commonwealth’s evidence that Appellant had driven his vehicle on a
highway or roadway while under the influence of a drug or combination of
drugs to a degree that impaired his ability to safely drive the vehicle).
The parties are directed to attach the trial court’s May 25, 2017
Opinion to all future filings.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/2018
-5-
IN THE COURT OF COMMON PLEAS
/
C's
t
Circulated 02/23/2018 02:29 PM
i.1.
V-SI
<-,-
1.:,'<21 /5, -
t...,--
<-<`,0,e.s,
..k.
BUTLER COUNTY, PENNSYLVANIA D.'"-. r3 T-i-clo 0
q`c-,
0 (.5N <2..g-P(
(';), 07 '5.' s,<-,Li
COMMONWEALTH OF PENNSYLVANIA _-'76,-, p '0
CRIMINAL DIVISION -...'
,1>, 'Lc%
Q
vs. (
C.A. No. 1045 of 2016
P
KENNETH J. TROUTMAN
For the Commonwealth: Terri M. Schultz, Esq., Assistant District Attorney
For the Defendant: Linda L. Ziembicki, Esq.
ORDER OF COURT PURSUANT TO Pa.R.A.P. 1925(111
AND NOW, this 25th day of May, 2017, the Clerk of Courts is directed to transmit the
above record to the Superior Court of Pennsylvania in accordance with the Rules of
Appellate
Procedure.
By order dated April 24, 2017, the Defendant was directed to file and to serve on the
judge a concise statement of errors complained of on appeal within twenty-one days. That
order
was entered on the docket on April 25, 2017, and copies of it were distributed on that date.
A
Concise Statement of Matters Complained Of was filed, though not served on the judge, on
May
18, 2017. In his Statement, the Defendant raises two claims:
1. The tower court erred when it found beyond a reasonable doubt that the
Defendant had been incapable of safe driving[;] and
2. The trial court erred when it found the Defendant Guilty as there was not
enough evidence to convict the Defendant on the charge of Driving Under the
Influence.
It appears the Defendant is asserting there was insufficient evidence upon which to convict and
that the verdict was against the weight of the evidence.
1
0
The Supreme Court of Pennsylvania addressed the standard of review for a sufficiency of
the evidence challenge as follows:
When reviewing a challenge to the sufficiency of the evidence, we must
determine if the Commonwealth established beyond a reasonable doubt each of
the elements of the offense, considering the entire trial record and all of the
evidence received, and drawing all reasonable inferences from the evidence in
favor of the Commonwealth as the verdict-winner. Commonwealth v. Pruitt, 597
Pa. 307, 951 A.2d 307, 313 (2008). The Commonwealth may sustain its
burden of
proof by wholly circumstantial evidence. Commonwealth v. Kennedy, 598 Pa.
621, 959 A.2d 916, 921 (2008), cert. denied, 129 S. Ct. 2433, 174 L. Ed. 2d
229
(2009).
Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009). The Supreme Court addressed weight
of the evidence challenges thusly:
The weight of the evidence is exclusively for the finder of fact who is free to
believe all, part, or none of the evidence and to determine the credibility of the
witnesses. Commonwealth v. Johnson, 542 Pa. 384, 394, 668 A.2d 97, 101
(1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996). An
appellate court cannot substitute its judgment for that of the finder of fact.
Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982).
Thus, we may only reverse the lower court's verdict if it is so contrary to the
evidence as to shock one's sense of justice. "673 Commonwealth v. Hawkins,
549 Pa. 352, 368, 701 A.2d 492, 500 (1997), cert denied, 523 U.S. 1083, 118
S.Ct. 1535, 140 L.Ed.2d 685 (1998).
Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999). The Defendant challenges his
conviction for violating § 3802(d)(2), which provides as follows:
(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:
(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.
2
During the early evening of February 23, 2016,
Trooper Thomas Karlo of the
Pennsylvania State Police was following the Defendant's tan
Chevrolet S-10 on State Route 28
in Buffalo Township, Butler County. The
Trooper observed the Defendant change from the right
to the left lane after activating his turn signal
briefly. He then observed the Defendant change
from the left to the right travel lane. After
returning to the right travel lane, the Defendant's turn
signal remained on for at least ten seconds. At
that point, the Trooper activated his overhead
lights and conducted a traffic stop. Trooper Karlo had
more than three years of experience as a
Pennsylvania State Police Trooper, had received standard field
sobriety test training, and had
attended an advanced roadside impaired driving
enforcement class.
Trooper Karlo approached the passenger side of the
Defendant's truck and asked for the
Defendant's documents and identification. As he did so he noticed
that the Defendant was
laughing. The Trooper observed two pill bottles inside
of the truck. He asked the Defendant
what medications he was taking. The Defendant indicated
he was taking viibryd and
clonazepam. The Defendant indicated that he had taken a
clonazepam before driving. The
Trooper noticed that the Defendant's pupils were extremely
dilated. Based on his observations
and the Defendant's statements, Trooper Karlo requested
that the Defendant undergo field
sobriety testing. The Defendant agreed.
The horizontal gaze nystagmus test, the one leg stand test, and
the walk and mm test were
administered by Trooper Karlo. During the walk and turn test, the
Defendant took eight instead
of the instructed nine steps. During the one leg stand test, the
Defendant put his leg down
prematurely after he lost his balance. During the horizontal gaze nystagmus
test, Trooper Karlo
noticed a tack of smooth pursuit, distinct nystagmus at maximum
deviation, and onset of
nystagmus prior to forty-five degrees. Trooper Karlo also noticed redness of the
Defendant's
3
conjunctiva. Based on his observations, the Trooper believed the Defendant had been
driving
under the influence of a controlled substance. He thus placed the Defendant into
custody and
requested a drug recognition expert. The Defendant was transported by the Trooper to
the
Kittanning State Police Barracks.
Once at the Kittanning Barracks, the Defendant agreed to undergo an
evaluation by a
drug recognition expert beginning at approximately 6:00 P.M. Corporal
Christopher Robbins, the
Patrol Unit Supervisor and a drug recognition expert, conducted the
evaluation. Corporal
Robbins observed that the Defendant had a red face, "thick" speech, a heart rate at the
high end
of the normal range, and the Defendant appeared to be nervous. As part of the
evaluation, the
Corporal administered a horizontal gaze nystagmus test. He observed several
indicators that the
Defendant was under the influence, including lack of smooth pursuit, distinct and
sustained
nystagmus, onset of nystagmus at approximately 30 degrees, which indicates the
presence of
drugs, and a lack of convergence. Corporal Robbins then had the Defendant
undergo a modified
Romberg balance test. During that test, the Defendant exhibited a 2" circular sway and eye
tremors. He also failed to maintain his position to within five seconds of the acceptable
time as
he was instructed. Prior to a walk and turn test, the Defendant was unable to keep
his balance
while instructions were being given. During the test, the Defendant took seven steps instead of
the requested nine, raised his arms, and made an improper turn. During a one leg stand
test, the
Defendant swayed, kept his foot lower than was directed, failed to count the number "10", and
switched feet. The Defendant failed to perform satisfactorily on a finger to nose test. The
Defendant's pupils were also observed to be excessively dilated in a dark room, and the
Defendant's pupils were abnormally slow to react. As part of the examination, the Defendant
admitted to having taken medication. Based on the examination performed by Corporal
4
Robbins, he opined that the Defendant was under the influence of a
central nervous system
depressant or depressants and was incapable of safely driving a vehicle.
Based on the testimony of Trooper Karlo and Corporal Robbins, which
the Court found
to be credible, there was sufficient evidence to find beyond a
reasonable doubt that the
Defendant drove his vehicle on a highway or roadway while under the influence
of a drug or
combination of drugs to a degree which impaired his ability to safely drive,
operate, or be in
actual physical control of the movement of the vehicle. The Defendant
admitted to taking
medications for which he had prescriptions prior to driving. While driving, he was
observed by
Trooper Karlo to switch lanes without, in the Trooper's opinion, signaling adequately.
He was
observed by the Trooper to change lanes and keep his turn signal on for at least ten
seconds after
doing so. Once stopped, the Defendant was observed by the Trooper to laugh
when he
approached. He performed poorly on roadside standardized field sobriety testing and his eyes
were observed to be dilated. Once taken to the Kittanning Barracks, the
Defendant again
performed poorly on standardized field sobriety testing and exhibited an inability to maintain his
balance. Additionally, the Defendant was observed to be swaying in a circular motion
during the
Romberg balance test, exhibited eye tremors, and failed to complete the test satisfactorily. It was
not error to find the Defendant was incapable of safely driving or that he was guilty beyond a
reasonable doubt of driving under the influence of a controlled substance. The verdict was not
against the weight of the credible evidence presented at trial.
By the Court,
(ko, iam R. Shaffer, Judge
c
aiets6S