J-S48019-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA L. LIVELY :
:
Appellant : No. 1643 EDA 2017
Appeal from the Judgment of Sentence April 18, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003378-2016
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 12, 2018
Joshua L. Lively (Appellant) appeals from the judgment of sentence
imposed after he was convicted of driving under the influence of a controlled
substance (DUI) – impaired ability and possession of marijuana.1 We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
Police Officer Shawn Devlin testified that on September 22, 2014,
at approximately 9:39 p.m., he and his partner, Officer Santos
(first name not given), were on routine patrol traveling in the area
of 52nd and Jefferson Streets when he observed [Appellant]
operating a gray Nissan [A]ltima with Massachusetts license
plates, run a red light. Officer Devlin immediately activated lights
and sirens, but [Appellant] did not pull over. Instead, [Appellant]
pulled into a shopping center east of 52nd Street; he did not pull
over at the first available opportunity, he continued to drive
through the parking lot and parked in a parking spot in front of
the Monster Pet store. Officer Devlin did not believe he was
attempting to flee; he was just not reacting to the police car
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1 75 Pa.C.S.A. § 3802(d)(2); 35 P.S. § 780-113(a)(31).
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* Retired Senior Judge assigned to the Superior Court.
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behind him. (N.T.[,] 3/2/17, [at] 13-17). When [Appellant]
eventually pulled over, Officer Devlin exited his vehicle and stated
he could smell a strong odor of marijuana; the smell was
incredibly strong the closer he got to the [A]ltima. [Appellant]
was the only person in the car[. Id. at 17-18.]
* * *
[Appellant] testified that while he did smoke (marijuana)
earlier that morning, he did not smoke any marijuana in the car.
He stated that the officer never asked him if he had been smoking.
He denied running the red light and stated that as soon as the
light turned green, the officer put on his flashing lights; that he
pulled over as soon as he could safely do so. ([Id.] at 59-61).
Trial Court Opinion, 11/3/17, at 2-4.
[Appellant] was arrested and [] charged with inter alia, DUI,
Controlled Substance – Impaired Ability – 1st Offense, and
Possession of Marijuana[.]
* * *
[F]ollowing a waiver trial, [Appellant] was found guilty of both
charges. . . . On April 18, 2017, [Appellant] was sentenced to a
mandatory minimum sentence of seventy-two (72) hours to six
(6) months of incarceration. [Appellant] was also ordered to pay
a One Thousand ($1,000.00) Dollar fine, attend Alcohol Highway
Safety School, and a twelve (12) month license suspension. No
further sentence was imposed on the conviction for possession of
marijuana. [Appellant] filed a Notice of Appeal to the Superior
Court. Following the receipt of the notes of testimony and
retaining new counsel, a Statement of Matters Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b) was ordered. A Statement
of Matters Complained of on Appeal was filed on September 14,
2017.
Id. at 1-2 (footnote omitted).
On appeal, Appellant presents the following issue for review: “Did not
the lower court err in finding Appellant guilty of driving under the influence of
controlled substances under 75 Pa.C.S.[A.] § 3802(d)(2) where the evidence
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was insufficient to establish that his ability to drive safely was impaired?”
Appellant’s Brief at 3.2 Specifically, Appellant argues that a conviction under
Section 3802(d)(2) requires proof of erratic driving demonstrating the inability
to drive safely. Appellant asserts that “[m]ere proof that an individual has
consumed intoxicating substances is insufficient to establish guilt under
[Section] 3802(d)(2).” Appellant’s Brief at 10. Appellant maintains that the
Commonwealth did not present evidence of his inability to drive safely.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
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. 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.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
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2 Appellant raised three additional issues in his Rule 1925(b) statement that
he has abandoned on appeal.
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defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). “Further, the trier of fact, in
passing upon the credibility of the witnesses, is free to believe all, part, or
none of the evidence.” Commonwealth v. Rivera, 983 A.2d 1211, 1220
(Pa. 2009) (quotations and citations omitted).
The trial court summarized the applicable law and Officer’s Devlin’s
testimony as follows:
[Appellant] challenges the sufficiency of the evidence for his
conviction under 75 Pa.C.S.A. § 3802(d)(2). Pursuant to that
statute:
(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.
75 Pa.C.S.A. § 3802(d)(2). The Superior Court has emphasized
that “Section 3802(d)(2) does not require that any amount or
specific quantity of the drug be proven in order to successfully
prosecute under that section.” Commonwealth v. Williamson,
962 A.2d 1200, 1204 (Pa. Super. 2008) (emphasis in original).
Rather, the Commonwealth must simply prove that, while driving
or operating a vehicle, the accused was under the influence of a
drug to a degree that impaired his or her ability to safely drive
that vehicle. Id.
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In this matter, Officer Devlin testified that when [Appellant]
eventually pulled over, he could smell an incredibly strong odor of
marijuana the closer he got to the vehicle [Appellant] was driving.
[Appellant] was the only person in the car and Officer Devlin
described him as having watery, glassy, somewhat bloodshot
eyes; he fumbled with his paperwork, and his speech was slow,
drawn out, and somewhat mumbled. Also, a blunt of a marijuana
cigar was recovered from the floorboard between the driver’s seat
and center console. Officer Devlin believed [Appellant] was DUI
based on what he smelled and what he observed. Moreover,
[Appellant] stated that he had smoked marijuana about two (2)
hours prior to being pulled over. Additionally, Officer Farrell
testified that he observed [Appellant] to have glassy eyes, and
slow, lethargic movement, speech and walk. According to Officer
Farrell, his observations of [Appellant] were consistent with
someone who [was] under the influence of marijuana.
Considering the totality of the above circumstances, viewed in the
light most favorable to the Commonwealth, there was sufficient
evidence to establish that [Appellant] was unable to safely operate
his vehicle due to the influence of marijuana.
Trial Court Opinion, 11/3/17, at 5-7.
Based on our review of the certified record on appeal, including the
transcripts of Appellant’s bench trial, we conclude that the trial court has
accurately described the facts and circumstances surrounding Appellant’s
arrest. See N.T., 3/2/17, at 13-19, 43-44, 64. We agree that the evidence
was sufficient to sustain Appellant’s conviction under Section 3802(d)(2). The
record reflects that Appellant’s physical condition at the time of his arrest was
indicative of someone who was under the influence of marijuana to a degree
that impaired his ability to safely operate his vehicle.
With respect to Appellant’s claim that a conviction under Section
3802(d)(2) requires the Commonwealth to present evidence that he was
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driving erratically or in an unsafe manner and the Commonwealth did not do
so, this argument does not warrant relief.
In support of this claim, Appellant relies on Commonwealth v. Gause,
164 A.3d 532 (Pa. Super. 2017). Gause, however, does not, as Appellant
claims, stand for the proposition that the Commonwealth must present
evidence of erratic or dangerous driving in order to support a conviction under
Section 3802(d)(2). Rather, in Gause, this Court addressed the issue of
whether expert testimony was needed to determine if a suspect exhibiting
“eyelid tremors” indicated that the individual was under the influence of
marijuana and could not safely operate a vehicle. This Court stated that
“eyelid tremors” were “not the typical and obvious indicia of marijuana use.”
Id. at 539. Consequently, we held that expert testimony was necessary “to
explain whether ‘eye tremors,’ or ‘body tremors,’ would indicate that someone
was under the influence of marijuana and that this impaired his ability to safely
drive, in violation of [S]ection 3802(d)(2).” Id. “Unlike staggering,
stumbling, glassy or bloodshot eyes, and slurred speech, the ‘ordinary signs
of intoxication discernable by a layperson,’ eye tremors are not an ordinary
sign of ingestion of a controlled substance, in particular, marijuana.” Id.
(italics in original).
In this case, the record reflects that two police officers observed
Appellant with watery, glassy, and bloodshot eyes, and noticed that his
movements and speech were slow and lethargic. N.T., 3/2/17, at 13-19, 43-
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44. One of the officers also reported that Appellant fumbled his paperwork.
Id. at 18. Accordingly, the evidence was sufficient to sustain Appellant’s
conviction under Section 3802(d)(2). We emphasize, to the extent the
Commonwealth was even required to present evidence that Appellant was
driving erratically or in an unsafe manner, the record reveals that the reason
the police stopped Appellant’s vehicle was because he ran a red light at an
intersection. Id. at 14.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/18
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