J-S10041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBERT PINHAK, :
:
Appellant : No. 1949 EDA 2018
Appeal from the Judgment of Sentence Entered June 11, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007242-2017
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
MEMORANDUM BY GANTMAN, P.J.E.: FILED MARCH 22, 2019
Appellant, Robert Pinhak, appeals from the judgment of sentence
entered in the Delaware County Court of Common Pleas, following his bench
trial conviction for driving under the influence of a controlled substance or a
combination of drugs (“DUI”).1 We affirm.
In its opinion, the trial court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.2
____________________________________________
1 75 Pa.C.S.A. § 3802(d)(2).
2 Page 6, footnote 4 of the trial court opinion states that Officer Curran
attempted to obtain Appellant’s medical records by search warrant and
learned Appellant had refused to submit to blood and urine testing at the
hospital. The record shows that the court sustained Appellant’s hearsay
objection to Officer Curran’s testimony about Appellant’s refusal to submit to
blood and urine tests.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10041-19
Appellant raises one issue for our review:
WHETHER THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE TRIAL COURT’S VERDICT FINDING
APPELLANT GUILTY OF DRIVING UNDER THE INFLUENCE:
CONTROLLED SUBSTANCE [IMPAIRED ABILITY]—FIRST
OFFENSE [(75 PA.C.S.A. SECTION 3802(D)(2))], WHERE
THE COMMONWEALTH PRESENTED NO BLOOD EVIDENCE,
NO EVIDENCE OF APPELLANT’S REFUSAL TO SUBMIT TO A
BLOOD TEST ORDER OR BREATHALYZER, NO EXPERT
TESTIMONY THAT APPELLANT WAS UNDER THE INFLUENCE
OF ALCOHOL OR SCHEDULE 1 NARCOTICS, AND THE
ARRESTING OFFICER DID NOT CONDUCT A FIELD
SOBRIETY TEST OR EVEN OBSERVE APPELLANT DRIVING
HIS VEHICLE?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Richard M.
Cappelli, we conclude Appellant’s issue merits no relief. The trial court opinion
comprehensively discusses and properly disposes of the question presented.
(See Trial Court Opinion, filed September 20, 2018, at 2-8) (finding:
Commonwealth presented sufficient evidence to support DUI conviction, even
if arresting officer did not conduct field sobriety tests or observe Appellant
actually driving vehicle; officer is a twelve-year police veteran with
certification as a drug recognition expert; Appellant was obviously
unconscious and unresponsive due to opiate overdose; evidence established
that Appellant was incapable of safe driving).
Appellant relies on Commonwealth v. Gause, 164 A.3d 532
(Pa.Super. 2017), appeal denied, 643 Pa. 188, 173 A.3d 267 (2017), for the
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J-S10041-19
proposition that the lay opinion of a law enforcement officer is insufficient to
prove that Appellant was under the influence of narcotics, where there is no
expert testimony, no blood test, no refusal for a blood test, no admission of
drug use, no recovery of narcotics, and no typical or obvious indicia of narcotic
use. Instantly, the Commonwealth did not present expert testimony. The
arresting officer, however, had a multitude of prior experiences involving
opiate overdoses, the officer found Appellant unconscious in the middle of a
busy intersection, Appellant exhibited obvious physical signs of opiate
overdose, Appellant remained unconscious despite shaking and chest rubbing,
and Appellant regained consciousness only after the officer administered two
doses of Narcan. This record supports the trial court’s decision. Accordingly,
we affirm based on the trial court opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/19
-3-
1_0pinion
Circulated 03/06/2019 10:00 AM
IN THE COURT OF CO:MlvlON PLEAS OF DELAWARE COUNTY,
CO:MlvlONWEALTH OF PENNSYLVANIA - CRIMINAL DMSION
COMM:ONWEALTH OF PENNSYLVANIA NO: 1949 EDA 2018
v. DELAWARE COUNTY
CP-23-CR-0007242-2017)
ROBERT PINHAK,
Defendant/Appellant
CAPPELLI, J. DATE: September 20, 2018
OPINION
Procedural History
Appellant, Robert Pinhak, appeals from his conviction and sentence for
violation of 75 § 3 802 D2, DUI, Controlled Substance - Impaired Ability - first
offense, an ungraded misdemeanor.
On July 27, 2017 Appellant was charged with DUI: Controlled Substance or
Metabolite-first offense (75 § 3802 §§ DI), an ungraded misdemeanor, DUI:
Controlled Substance-Impaired ability-first offense, an ungraded misdemeanor,
Careless Driving, 75 § 3714 §§ A, a summary offense, Reckless Driving, 75 §
3736 §§A.On November 30, 2017 all charges were bound over after a preliminary
hearing. The Appellant was arraigned in the Court of Common Pleas of Delaware
County on January 5, 2018.
1
Appellant was convicted of violation of 75 § 3802 §§ D2 after non-jury trial
on May :2., 2018. On June 11, 2018 the Appellant was sentenced to a period of
incarceration of 72 hours to 6 months among other restorative sanctions. The
Appellant was to present himself to the Delaware County Prison on June 22, 2018
at 6 p.m. to begin his sentence. No post-sentence motions were filed.
On June 27) 2018 Appellant through counsel filed a Notice of Appeal
challenging his conviction. On July 6) 2018 Appellant was ordered to file a
Concise Statement of Matters Complained of on Appeal. On July 17, 2018 the
Appellant filed a Concise Statement of E«oY.5 Complained of onAppeal.
Appellant raises one issue on appeal averring there was insufficient evidence
to support the guilty verdict finding violation of 75 § 3802 §§ D2 where the
Commonwealth presented no blood alcohol evidence, no evidence of the
Appellant's refusal to submit to a blood test order or breathalyzer, no expert
testimony that Appellant was under the influence of alcohol or schedule 1 narcotics
and the arresting officer did not conduct a field sobriety test or even observe
[Appellant] driving his vehicle.
Officer Michael Curran of the Upland Borough Police Department was
called to testify at trial. He is a twelve year police veteran. At the time of his
testimony he was ranked as a Corporal in the Patrol Division. (N.T. 5/2/18, pp. 4-
5).
2
On July 20, 2017he was in uniform in a marked patrol car when he received
a call about an unconscious driver in a white truck stopped at an intersection. (N. T.
5/2/18, p. 5).
Officer Curran testified he received a dispatch call to Sixth and Main Street'
for an unconscious white male in a white pick-up truck in the middle of an
intersection at 7:52 a.m. Jd.
When asked what he observed on arrival minutes after the call (the location
is a block away from the police station), Officer Curran testified on arrival there
was a white male slumped back in the driver's seat. No other occupants were in the
vehicle. Several bystanders were on the sidewalk. The driver (identified as
[Appellant]) had his eyes closed. ( N.T. 5/2/18, p.6).
The Appellant's white pick-up truck was stopped in the middle of the
intersection. Id at 7. The whole intersection was stopped and unable to move about
or around the Appellant's vehicle. Traffic was gridlocked. (N.T. 5/2/18 p. 7).
Officer Curran testified that there was a lot of traffic in the intersection at that time
of the morning.
On arrival Officer Curran describes there were bystanders lining both sides
of the street. Officer Curran approached the vehicle and again he identified
1
Sixth and Main Street is described as one of the main intersections controlled by traffic signals
in all directions. It is a main road through town that crosses the other main road. There is a
school bus stop on the comer, and there is a little shop. (N.T. 5/2/18, p. 7).
3
Appellant as the only person in the vehicle behind the wheel. The keys were in the
ignition. The Appellant's foot was on the brake pedal. When Officer Curran
arrived his lights and loud siren were on but the Appellant did not stir. Officer
Curran opened the driver door and the Appellant unconscious slumped back2 in his
seat. Officer Curran tried to awaken the Appellant by shaking him to no response.
He began aggressively rubbing the Appellant's sternum. Id at 9.
The Appellant was noticed to have very shallow breathing while sternum rub
was administered. Although Appellant could not be aroused to awaken in this
manner which was suggestive that the Appellant was not merely tired or sleeping
"because rubbing that part [which] usually brings them back." Id at JO.
The Appellant did not arouse or awaken or become conscious with vigorous
shaking. At that point Officer Curran was thinking that Appellant was overdosing.
Id at 10. Therefore, Officer Curran retrieved his medical bag equipped with
Narcan and administered it. Officer Curran had previously administered Narcan on
multiple occasions.
By way of background, Officer Curran testified to his qualifications
including his 201 7 certification as a drug recognition expert. In 2014 he underwent
specific training for opiate use and response and prevention. Currently he describes
2
Further described as slumped with his head back with his eyes closed. Id.
4
encountering perpetrators under the influence of heroin and opiates on a weekly
basis.
Respecting opiates, Officer Curran testified he looks for symptoms including
shallow breathing, cold clammy skin, and the most obvious is their pupils in their
eyes. Id at 12.
Officer Curran testified that Appellant did not respond to the first dose of
Narcan. He also testified that the Appellant's eyes were pinpoints. They were the
size of pins and "no other drug does that." Id at 13. Because the Appellant was not
responding to noxious stimuli and the first dose of Narcan, Officer Curran
administered a second dose ofNarcan. Id at 13.
At that point the Narcan starts working and the Appellant starts to come
"to", he starts moving around. Id at 14. His arms are moving and his body is
moving.3 Id.
When asked if Narcan will work (be effective) on people who .. undergoing
a cocaine overdose, Officer Curran testifies "absolutely not." Id. "Narcan only
affects someone who is under the influence of an opiate." Id at 14.
Eventually, EMS (Officer Curran called the EMS because he thought the
Appellant may die) arrived on the scene. They removed him from the vehicle, put
3
Groggy like I said not talkative. He eventually starts opening up his eyes but he is slowly
moving his body. Id at 14.
5
him on a gurney, put him in the back of the ambulance and headed off to the
hospital. Id at 15.4
Officer Curran testified he encounters people under the influence very
frequently. Officer Curran was asked to render his opinion as to whether the
Appellant was under the influence of a drug or a combination of drugs to a degree
which impaired his ability to safely drive, operate or be in physical control of the
movement of the motor vehicle to which he responded he believes the Appellant
was impaired underneath an opiate. (N. T. 5/2/18, p. 18).
Against this evidence this Court finds no merit to the Appellant's challenge
on the basis the arresting officer did not administer field sobriety tests or even
observe the Appellant driving his vehicle. Here, obviously the Appellant was
unconscious and not responsive due to opiate overdose. There was both objective
evidence and op,'m:orv testimony that the Appellant was incapable of safe driving
pursuant to 75 § 3802 §§ D2.
Discussion
With respect to Appellant's sufficiency of the evidence claim, after
careful review of the record, and the relevant case law, Appellant is not entitled to
relief on this issue.
4
Officer Curran attempted to obtain the Appellant's medical records by search warrant and
learned the Appellant refused to submit to blood and urine testing at the hospital so he was
unable to obtain lab results. Id at 15.
6
"A claim challenging the sufficiency of the evidence is a question of law."
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The standard applied in
reviewing the sufficiency of the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner, there is sufficient
evidence to enable the Factfinder to find every element of the crime beyond a
reasonable doubt.
In applying the above test, the Pennsylvania Superior Court may not weigh
the evidence and substitute their judgment for the Factfinder. In addition, it is
important to note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence. Any doubts
regarding a defendant's guilt may be resolved by the Factfinder unless the
evidence is so weak and inconclusive that as a matter of law no probability of fact
may be drawn from the combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying the above test, the
entire record must be evaluated and all evidence actually received must be
considered. Finally, the Finder of Fact while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to believe all, part or
none of the evidence. Commonwealth v. Antidormi, 84 A.3d 736, 75 (Pa. 2014).
7
Subsection 3 802(d)(2) provides: 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).
Subsection 3802(d)(2) requires proof that the defendant 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
his or her vehicle.
Instantly the Commonwealth met their burden of proof as to each and every
element beyond a reasonable doubt sufficient for this Court to convict the
Appellant. 5
5
See, Commonwealth v. Adams, 2005 Pa. Super 296, 882 A.2d. 496, 498-99 (Pa. Super. 2005).
See also, (citing Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa.Super.1991) (finding an
inference that it [the vehicle] was driven, is a key factor in a finding of actual control.) In a
majority of cases, the location of the vehicle supports defendant had driven the vehicle.
Commonwealth v. Woodruff, 447 Pa. Super, 2221 688 A.2d 1158 (1995). Other factors include
the motor running, the location of the vehicle, and additional evidence showing the actual
physical control. See, Commonwealth v. Williams 941 A.2d 14 (Pa. Super. 2008). A
determination of actual physical control, as .is required to sustain DUI conviction is based upon
the totality of the circumstances. Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super.
2005).
8
Conclusion
For all the foregoing reasons this Court's decision should be affirmed.
BY THE COURT:
cc: John F.X. Reilly, Deputy District Attorney (Via: Interoffice and E-mail)
Delaware County District Attorney's Office
Kaitlyn Kramer, Appeals Unit Coordinator (Via: Interoffice and E-Mail)
Delaware County District Attorney's Office
Earl Raynor, Esquire (Via: First Class and E-mail)
Attorney for Defendant/Appellant
r .•.
:,: .. ··...
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