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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DARRICK DAVID COLEMAN :
:
Appellant : No. 2984 EDA 2019
Appeal from the Judgment of Sentence Entered September 19, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001470-2019
BEFORE: DUBOW, J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 21, 2020
Appellant, Darrick David Coleman, appeals from the Judgment of
Sentence entered after his non-jury conviction of one count of Driving Under
the Influence of Alcohol or Controlled Substance (“DUI”).1 He challenges the
sufficiency of the evidence supporting his conviction. We affirm.
At 10:00 p.m. on November 23, 2018, Officer Jonathan Stewart was
conducting speed enforcement patrol on the Route 30 Bypass in Chester
County approximately 13 miles from the Valley Forge Casino. After Appellant
drove past Officer Stewart at 79 miles per hour (“mph”) in a 55 mph zone,
Officer Stewart initiated a traffic stop and approached the vehicle from the
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* Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S. § 3802(d)(2).
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passenger’s side.2 Appellant rolled down the window, and Officer Stewart
smelled a strong odor of burnt marijuana coming from inside the vehicle and
alcohol on Appellant’s breath. Appellant admitted that he had had a beer at
the Valley Forge Casino and had smoked marijuana before getting into his car
to head home. Appellant then reached into the vehicle’s ashtray and tossed
a burnt marijuana cigarette, or “roach,” out the window, which another
responding police officer recovered.
Appellant performed field sobriety tests (“FSTs”) at Officer Stewart’s
behest, the results of which indicated some signs of impairment. Specifically,
Appellant failed to follow directions, stepped off the line during the walk and
turn test, and failed to hold the one-legged stance more than 10 seconds.3
Based on Appellant’s driving 24 miles over the speed limit, his admission of
having smoked marijuana, the strong odor of marijuana and alcohol in the
vehicle and on Appellant’s breath, the tossed “roach,” and the results of the
field sobriety tests, Officer Stewart concluded that Appellant was incapable of
safely operating his vehicle. After Appellant’s arrest, the police officers
transported him to the police station and, in response to form questions,
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2 The police vehicle dashboard camera recorded the entire episode.
3 Officer Stewart testified that he did not consider Appellant’s failure to hold
the one-legged stance for more than 10 seconds to indicate an impairment
because the officer had not given Appellant instructions to hold the position
until he said to stop. Id. at 27.
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Appellant said he was not injured and not in any pain. The Commonwealth
charged him with Speeding, Possession-Marijuana, and five DUI violations.4
The court held Appellant’s non-jury trial on August 22, 2019, at which
Officer Stewart testified that he had been a police officer for 20 years, had
attended numerous classes on marijuana drug interdiction, conducted at least
500 arrests for marijuana possession, and through his training and
experience, could discern by smell whether marijuana was fresh or burnt. He
testified in detail regarding the events noted above that led to Appellant’s DUI
arrest. The court admitted the discarded “roach” into evidence.
Officer Stewart further testified that he was an experienced
standardized FST practitioner and instructor and able to conclude after
Appellant’s performance that he was not capable of safe driving. Officer
Stewart testified that Appellant had told him after he stepped off the line on
the walk and pivot test that he had injured his right ankle. Officer Stewart also
stated that Appellant stood on his left foot to perform the one-legged stand
for 10 seconds and that Appellant did not appear to be in pain, and that
Appellant was not wearing a medical boot or using a cane at the time of the
stop.5 In addition, the Commonwealth played the police dashboard camera
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4The Commonwealth ultimately withdrew the Speeding charge and two DUI
charges. See N.T. Trial, 8/22/19, at 3, 12-13.
5At trial, Appellant wore a medical boot on his right ankle and walked with a
cane. Appellant’s attorney attempted to discredit Officer Stewart by asking
about Appellant’s alleged injury and implying that Officer Stewart should not
have performed an FST because of the alleged injury. See N.T. at 34-37.
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(“Dashcam”) recording for the court while Officer Stewart narrated and
responded to questions. The court admitted the Dashcam video into evidence.
The Commonwealth presented no laboratory test results.
The trial court found Appellant guilty of one count of DUI, 75 Pa.C.S. §
3802(d)(2).6 On September 19, 2019, the court sentenced him to a term of
14 days’ to 6 months’ incarceration.
Appellant timely appealed. He filed an ordered Pa.R.A.P. 1925(b)
Statement and the court filed a Rule 1925(a) Opinion.
Appellant raises the following issues for our consideration:
1. The Commonwealth presented insufficient evidence to convict
Appellant under 75 Pa.C.S. § 3802(d)(2) because it failed to prove
Appellant was under the influence of drugs or a combination of
drugs.
2. The Commonwealth presented insufficient evidence to convict
Appellant under 75 Pa.C.S. § 3802(d)(2) because it failed to prove
Appellant was incapable of safely driving a motor vehicle due to
be [sic] under the influence of a drug or a combination of drugs.
Appellant’s Brief at 4 (suggested answers omitted).
Both of Appellant’s issues challenge the sufficiency of the evidence
underlying his conviction. “A claim challenging the sufficiency of the evidence
is a question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000). “We review claims regarding the sufficiency of the evidence by
considering whether, viewing all the evidence admitted at trial in the light
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6 The court found Appellant not guilty of Possession-Marijuana and the
remaining DUI charges.
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most favorable to the verdict winner, there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a reasonable
doubt.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)
(citation and internal quotation marks omitted).
“Further a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence.” Id. “In conducting this review, the appellate court may not weigh
the evidence and substitute its judgment for the fact-finder.” Id.
Section 3802(d)(2) provides that “[a]n individual may not drive, operate
or be in actual physical control of the movement of a vehicle” when “[t]he
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. § 3802(d)(2).
“This section does not require proof of a specific amount of a drug in the
driver's system. It requires only proof that the driver was under the influence
of a drug or combination of drugs to a degree that the ability to drive is
impaired.” Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012).
Expert testimony is not required to support a guilty verdict. Id.
In explaining its verdict, the court stated:
Based on the record, it is clear that the Commonwealth presented
ample testimony and evidence from which the trial judge, acting
as trier of fact, could find that every element of the crime of DUI
was established beyond a reasonable doubt. Even though
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appellant tried to claim that the FSTs were inconclusive due to a
leg injury and that there was no evidence as to what time
appellant smoked, the trial judge found Officer Stewart’s
testimony credible and determined that appellant’s claim that his
leg injury affected the FSTs was not credible. Further, Officer
Stewart’s testimony sufficiently established that appellant smoked
shortly before getting into his vehicle. It was within the trial
judge’s province to do so. Accordingly, the court finds that the
evidence introduced at trial was sufficient as a matter of law to
support the guilty verdict and, therefore, appellant is not entitled
to relief on this basis.
Trial Ct. Opinion, dated 1/17/20, at 4.
Appellant argues that Officer Stewart’s testimony—regarding
Appellant’s performance on the FSTs, his observation of Appellant’s speeding,
the odor of marijuana in Appellant’s car, Appellant’s admission that he had
used marijuana, the tossed “roach,” and the odor of alcohol on Appellant’s
breath—does not support the court’s conclusion “that [A]ppellant was 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.” Appellant’s Br. at 11. Comparing his case to
others, Appellant notes that the Commonwealth did not admit blood or other
drug test results, results from testing the “marijuana cigarette,” testimony
linking Appellant’s bloodshot eyes as a symptom of marijuana usage, or
testimony that Appellant was driving dangerously or recklessly, other than
speeding. Id. at 12-14. Appellant further notes that he did not cause an
accident and did not demonstrate erratic driving, and because Officer Stewart
administered a test other than a drug-specific field test, the evidence relied
on by the trial court “is too speculative to sustain a conviction[.]” Id. at 16.
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Appellant asks this Court to vacate his conviction based on evidence that
was not presented at his trial. Our standard of review, however, requires that
we consider the evidence that was presented at trial, in the light most
favorable to the Commonwealth as the verdict winner. Our review supports
the court’s verdict.
The court, sitting as fact-finder, found credible testimony establishing
that Appellant drove 24 miles over the speed limit, admitted that he drank a
beer and smoked marijuana before getting in his car, had blood-shot eyes,
and smelled of marijuana and alcohol. See N.T., at 5, 9, 17, 24, 37. Officer
Stewart testified about Appellant’s apparent consciousness of guilt,
manifested by his tossing the “roach” out of the car as he was stopped on the
side of the road. Id. at 10. Officer Stewart also testified about Appellant’s
failing to perform the walk and turn FST without losing his balance and
stepping off the line, failing to follow directions, and standing on his left foot
for only 10 seconds. Id. at 25-27, 39. The court found that the Dashcam
video corroborated Officer Stewart’s testimony about the FSTs, and noted that
Appellant’s tossing of the “roach” demonstrated consciousness of guilt. Id. at
46, 48.
Viewing the totality of the evidence in the light most favorable to the
Commonwealth, we conclude the Commonwealth presented sufficient
evidence to support the court’s verdict that Appellant was not capable of
driving safely due to his admitted use of marijuana and alcohol. This Court
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may not reweigh the evidence. Accordingly, Appellant’s sufficiency challenge
warrants no relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2020
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