Commonwealth v. Hutchins

*313CONCURRING AND DISSENTING OPINION BY

STRASSBURGER, J.:

I join in the Majority’s disposition of Appellant’s second issue, where this Court concludes that the evidence was sufficient to support Appellant’s conviction pursuant to 75 Pa.C.SA. § 3802(d)(l)(i). I also join in the Majority’s conclusion that the evidence was insufficient to support Appellant’s REAP conviction. However, I disagree with the Majority’s conclusion that the evidence was sufficient to support Appellant’s conviction pursuant to 75 Pa. C.S.A. § 3802(d)(2) (general impairment). Accordingly, I respectfully dissent and offer the following analysis.

A person may be convicted of the portion of the DUI statute regarding general impairment where an individual operates or is in actual physical control of the movement of a vehicle where “[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.A. § 3802(d)(2).

Instantly, the Majority first concludes that the Commonwealth needed to “present expert testimony regarding Appellant’s blood test result for the jury to appropriately consider that result when evaluating the cause of the accident for purposes of Appellant’s Subsection 3802(d)(2) conviction.” Majority Opinion at 308. I agree with this portion of the opinion. Where I part ways with the Majority is in its second conclusion on this issue that the evidence was sufficient to support the conviction even without consideration of the blood test result.

The following is a summary of the evidence presented in the light most favorable to the Commonwealth as the verdict winner. The accident occurred in the daylight on a clear day. N.T., 9/14/2010, at 25. Appellant made a left turn in front of an oncoming car without enough clearance, and the accident was definitely Appellant’s fault. Trooper Mays testified that when he went to search the Appellant’s vehicle, he smelled marijuana1 in Appellant’s car and then found marijuana there. Id. at 31-32. Trooper Trate testified that upon interacting with Appellant when he arrived at the scene of the accident, Appellant was “unusually calm.” Appellant admitted to Trooper Trate that the accident was Appellant’s fault, that he was “a little distracted,” and that he had smoked marijuana earlier that day. Id. at 61-62.

This evidence is insufficient to show beyond a reasonable doubt that Appellant was impaired at the time of the accident. Even though the accident was Appellant’s fault, accidents occur every day where the individual at fault was not under the influence of an intoxicating substance. Additionally, Appellant’s calm demeanor after the accident is not evidence of anything. Everyone reacts differently after an accident, and in light of the fact that Appellant’s children were injured, it is probably a good thing that Appellant was not hysterical, as that would not have helped an already difficult situation. Finally, Appellant’s admission to having smoked marijuana earlier in the day and the fact that there was a burnt marijuana smell in the car (with absolutely no indication of when that marijuana may have been smoked) are simply not enough to prove Appellant was impaired at the time of the accident. *314Accordingly, I would reverse Appellant’s conviction under 75 Pa.C.S. § 3802(d)(2).2

. The Majority discusses the issue of whether this was a “burnt” or "raw” marijuana smell in footnote 6 of its memorandum. I agree that it is a "reasonable inference to conclude that the marijuana smell observed within [Appellant’s] car was that of burnt rather than raw marijuana.” Majority Opinion at footnote 6.

. I also point out that the Majority's conclusion that Appellant was "under the influence of a drug or combination of drugs to a degree which impairs the individual’s ability to safely drive,” pursuant to 75 Pa.C.S. § 3802(d)(2), but did not "recklessly [engage] in conduct which places or may place another person in danger of death or seriously bodily injury,” pursuant to 18 Pa.C.S. § 2705, results in an inconsistent outcome in this case. The Majority's reliance on Commonwealth v. Mastromatteo, 719 A.2d 1081 (Pa.Super.1998) is misplaced.

In that case, we held that "driving under the influence of intoxicating substances does not create legal recklessness per se but must be accompanied with other tangible indicia of unsafe driving to a degree that creates a substantial risk of injury which is consciously disregarded.” Id. at 1082. This case is distinguishable. The police stopped Mastromat-teo’s vehicle after they received a referral regarding a domestic situation between Mas-tromatteo and her husband. The police observed Mastromatteo driving "in a relatively slow fashion and never [coming] close to any other vehicles.” Id. The vehicle drifted over the middle line on three occasions which prompted the traffic stop. This Court upheld Mastromatteo's conviction for DUI (general impairment), but reversed as to REAP because there was no tangible indicia of unsafe driving.

In the instant case, however, police arrived on the scene when Appellant caused a serious accident. Thus, if Appellant was generally impaired, as the Majority concludes, the logical next step would be to conclude that his impairment caused his unsafe driving and resulting accident, and Appellant's conviction for REAP should stand.