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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
TARA BETH DODSON, : No. 1843 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered October 17, 2019,
in the Court of Common Pleas of Perry County
Criminal Division at No. CP-50-CR-0000523-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 22, 2020
Tara Beth Dodson appeals from the October 17, 2019 judgment of
sentence entered by the Court of Common Pleas of Perry County following her
conviction of driving under the influence of a controlled substance.1 The trial
court sentenced appellant to a term of seven days to six months’ incarceration.
After careful review, we affirm.
The following factual and procedural history can be gleaned from the
certified record: In the early morning hours of September 12, 2019,
Jason Taylor was arrested and transported to the Pennsylvania State Police
barracks in Newport, Pennsylvania. At approximately 2:00 a.m., appellant
arrived at the barracks to pick up Taylor. Upon appellant’s arrival, the trooper
1 75 Pa.C.S.A. § 3802(d)(2).
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on duty, Benjamin Markosky, noticed the odor of marijuana emanating from
her person. Trooper Markosky further noted that appellant’s eyes appeared
dilated, her speech was slurred, and she appeared to be nervous. Appellant
denied using any drugs.
Trooper Markosky administered a litany of sobriety tests on appellant,
including the horizontal gaze nystagmus test, lack of convergence test,
modified Romberg test, walk-and-turn test, and one-leg stand test. Following
the administration of the sobriety tests, Trooper Markosky determined that
appellant was impaired and incapable of operating a vehicle safely. Appellant
then consented to a blood draw; however, the blood draw was not successful.
Appellant was then processed and released.
Following a bench trial, the trial court convicted appellant of the
aforementioned offense on June 17, 2019. On October 17, 2019, the trial
court imposed sentence. Appellant filed a timely notice of appeal on
November 12, 2019. The trial court ordered appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and appellant timely complied. The trial court filed an opinion pursuant to
Pa.R.A.P. 1925(a) on January 6, 2020.
Appellant raises the following issue for our review:
Whether or not the evidence introduced at the
non-jury trial was sufficient to prove beyond a
reasonable doubt appellant had been operating a
motor vehicle while under the influence?
Appellant’s brief at 8 (full capitalization omitted).
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When conducting sufficiency of the evidence reviews, we are governed
by the following standard:
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 resolve 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 defendant’s
crimes beyond a reasonable doubt, the
appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-723
(Pa.Super. 2013) (internal quotations and citations
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omitted). Importantly, “the [fact finder], which
passes upon the weight and credibility of each
witness’s testimony, is free to believe all, part, or
none of the evidence.” Commonwealth v.
Ramtahal, [] 33 A.3d 602, 607 ([Pa.] 2011).
Commonwealth v. Sebolka, 205 A.3d 329, 336-337 (Pa.Super. 2019).
Here, the trial court convicted appellant of driving under the influence
of a controlled substance. The Motor Vehicle Code defines this offense as:
(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).
First, appellant contends that the Commonwealth failed to establish
beyond a reasonable doubt that she was operating a vehicle while under the
influence of a controlled substance. (Appellant’s brief at 12-14.)
“The term ‘operate’ requires evidence of actual
physical control of either the machinery of the motor
vehicle or the management of the vehicle’s
movement, but not evidence that the vehicle was in
motion.” Commonwealth v. Johnson, 833 A.2d
260, 263 (Pa.Super. 2003).
“Our precedent indicates that a combination of the
following factors is required in determining whether a
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person had ‘actual physical control’ of an automobile:
the motor running, the location of the vehicle, and
additional evidence showing that the defendant had
driven the vehicle.” Commonwealth v. Woodruff,
[], 668 A.2d 1158, 1161 ([Pa.Super.] 1995). A
determination of actual physical control of a vehicle is
based upon the totality of the circumstances.
Williams, supra at 259. “The Commonwealth can
establish through wholly circumstantial evidence that
a defendant was driving, operating or in actual
physical control of a motor vehicle.” Johnson, supra
at 263.
Commonwealth v. Toland, 995 A.2d 1242, 1246 (Pa.Super. 2010), appeal
denied, 29 A.3d 797 (Pa. 2011), quoting Commonwealth v. Brotherson,
888 A.2d 901, 904-905 (Pa.Super. 2005), appeal denied, 899 A.2d 1121
(Pa. 2006).
Specifically, appellant argues as follows:
Appellant could not be placed in operation of the
motor vehicle, no testimony given to say she drove
there and [no] video evidence to show she drove
there. No keys were noted as being taken, located on
her person or in the vehicle.[2] . . . No extra steps
were taken to prove beyond a reasonable doubt that
[a]ppellant drove to the barricks [sic] and was indeed
under the influence.
Appellant’s brief at 15.
At trial, the Commonwealth presented evidence from Trooper Markosky.
Trooper Markosky testified that after he had administered sobriety tests to
appellant, he exited the barracks to retrieve appellant’s registration from her
2 The Commonwealth notes in its brief that keys are seen in appellant’s hand
in the Newport state police barracks’ lobby video surveillance camera, which
was admitted into evidence at trial. (Commonwealth’s brief at 2 n.1.)
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vehicle and to “see if anything was in plain view.” (Notes of testimony,
6/17/19 at 10.) Trooper Markosky further testified that he “did not believe”
that there was anyone else in appellant’s vehicle other than herself. (Id.
at 13.) He also testified that aside from appellant, the only other person to
enter the barracks was an unidentified individual, to whom Trooper Markosky
referred as “the firefighter.” (Id.)
After reviewing this evidence in the light most favorable to the
Commonwealth, we find that the Commonwealth presented sufficient
evidence to prove, beyond a reasonable doubt, that appellant was driving,
operating, or in physical control of a motor vehicle. See Johnson, 833 A.2d
at 263.
Appellant also contends that the Commonwealth failed to meet its
burden of proof pertaining to appellant’s alleged impairment by relying upon
standard field sobriety tests. (Appellant’s brief at 14.)
Section 3802(d)(2) of the Motor Vehicles Code “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), citing Commonwealth v. Williamson,
962 A.2d 1200, 1204 (Pa.Super. 2008). The Tarrach court further observed
that in Commonwealth v. Griffith, 32 A.3d 1231, 1240 (Pa. 2011), our
supreme court found that “police observations and a failed sobriety test
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sufficed to satisfy the inquiry, even without expert testimony. Tarrach,
42 A.3d at 346. Finally, this court has held that “there is no requirement that
videotape or physical evidence be presented at trial[,]” and that a police
officer’s testimony “is sufficient to prove the elements of DUI-general
impairment.” Commonwealth v. Giron, 155 A.3d 635, 638 (Pa.Super.
2017) (citations omitted).
Specifically, appellant argues as follows:
As for the Standard Field Sobriety Tests, none of them
alone are indicators that someone is impaired. For
example, the HGN resulted in no indicators, the
30 seconds in 29 seconds, almost perfect. The
balance test, which the Trooper indicated there was
swaying, admitted that it could not be seen on the
video.
Appellant’s brief at 15.
This argument is belied by our case law. Indeed, as noted above, police
testimony and a failed sobriety test are sufficient to prove impairment beyond
a reasonable doubt. Tarrach, 42 A.3d at 346. Here, the police administered
a litany of field sobriety tests on appellant. As summarized by the trial court:
In the case at bar, Trooper Markosky observed several
indicators of being under the influence. These
indicators, when all put together, can lead a person
with the training and experience of a State Police
Trooper to the conclusion that the individual is in fact
under the influence of a controlled substance.
Trooper Markosky testified that, . . . . [he] observed
[appellant’s] pupils being dilated, slurred speech,
eyelid tremors, and an inability to stand without
swaying. Each of these alone is not enough to support
a conviction, but when viewed as a whole, they
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support the conclusion of [appellant’s] being under
the influence of a controlled substance.
Trial court opinion, 1/6/20 at unnumbered page 2.
When viewed in the light most favorable to the Commonwealth, we find
that the Commonwealth has met its burden by establishing, beyond a
reasonable doubt, that appellant exhibited the impairment required under
Section 3802(d)(2). Accordingly, appellant’s issue is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/22/2020
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