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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
HUNTER WILLIAM GRIMES :
:
Appellant : No. 980 MDA 2019
Appeal from the Judgment of Sentence Entered January 15, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001414-2018
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 31, 2020
Appellant Hunter William Grimes appeals the judgment of sentence
entered by the Court of Common Pleas of Cumberland County after Appellant
was convicted of two counts of Driving Under the Influence of a Controlled
Substance (DUI).1 Appellant contends that the trial court erred in denying his
suppression motion and challenges the sufficiency of the evidence supporting
his convictions. After careful review, we affirm.
On November 24, 2017, at approximately 1:00 p.m., Trooper Zeina
Black was on patrol in West Pennsboro Township, Cumberland County when,
using radar, she clocked Appellant’s vehicle traveling 55 miles per hour (mph)
____________________________________________
*Former Justice specially assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(d)(1)(i) (DUI Controlled Substance – Schedule I –
second offense); § 3802(d)(1)(iii) (DUI Controlled Substance – Metabolite –
second offense). Appellant was acquitted of the DUI charge at 75 Pa.C.S.A.
§ 3802(d)(2) (DUI Controlled Substance – Impaired Ability – second offense).
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in a posted 35-mph zone. Trooper Black initiated a traffic stop of Appellant’s
vehicle for exceeding the speed limit. Notes of Testimony (“N.T.”),
Suppression Hearing, 6/5/19, at 5-7.
Upon initiating contact with Appellant, Trooper Black noticed Appellant
was “visibly” and “uncontrollably” shaking. Id. at 7, 11. While Trooper Black
admitted that motorists pulled over for a traffic stop at times exhibit shaking
due to nervousness, Trooper Black indicated that Appellant’s high degree of
shaking was unusual. Id. at 14. When Trooper Black asked Appellant why
he was shaking, Appellant did not offer any reason. Id. at 7.
Trooper Black also noticed that Appellant’s pupils were “pinpoint
constricted.” Id. When asked why his pupils were constricted, Appellant
indicated that he just woke up. Id. Trooper Black did not detect any odor of
alcohol or marijuana in the vehicle. Id. at 7, 15.
At that point, Trooper Black suspected Appellant was under the influence
of a controlled substance and deemed it necessary to detain him for further
investigation. However, as Trooper Black felt the assessment of Appellant’s
intoxication was “beyond [her] training,” she did not perform field sobriety
testing, but contacted her barracks to seek assistance from an officer certified
in Advanced Roadside Impaired Driving Enforcement (ARIDE). Id. at 8.
Trooper David Highhouse, an ARIDE-certified officer, responded to
assist Trooper Black in evaluating Appellant’s suspected intoxication. Trooper
Highhouse first administered Standard Field Sobriety Testing, in which
Appellant exhibited several indicators of intoxication on both the “walk and
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turn” and “one leg stand” tests. Id. at 19. While Trooper Highhouse was
explaining the “walk and turn” test, Appellant was unable to remain still and
stepped off the line twice. Id. at 20. Once instructed, Appellant “missed the
heel to toe sequence on all steps.” Id. He also “made an improper turn and
on the return nine steps, he stepped off line by going in a diagonal manner
instead of down the straight line.” Id. During the “one leg stand test,”
Appellant swayed and put his foot down before the test was complete. Id.
Trooper Highhouse also administered two ARIDE tests. First, Trooper
Highhouse conducted the Lack of Convergence test after which he found that
Appellant’s eyes converged normally. Id. at 23. Second, Trooper Highhouse
administered the modified Romberg balance test, in which an individual is
asked to tilt his head back, balance, and estimate the passage of thirty
seconds in his head. Id. at 23. When Appellant submitted to this test,
Appellant exhibited eye and body tremors and swayed back and forth. Id. at
24. In estimating the thirty-second interval, Appellant waited thirty-eight
seconds, eight seconds longer than necessary. Id.
From these tests, Trooper Highhouse admitted he could not conclusively
find that Appellant was under the influence of marijuana, but was able to
determine Appellant exhibited several indicators of impairment. Id. at 24.
Based on this assessment, Trooper Black transported Appellant to the Carlisle
barracks for an evaluation by a Drug Recognition Expert. Id. at 16. Trooper
Black indicated that, at that point, she had not arrested Appellant, but had
simply detained him for further investigation. Id. at 9, 16.
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At the Carlisle barracks, Appellant was evaluated by Trooper Ron Carey,
an officer with certification as a Drug Recognition Expert (DRE) and experience
teaching classes on field sobriety testing and ARIDE testing. N.T. at 35-36.
Trooper Carey provided Appellant with Miranda warnings before the
evaluation, noting that Appellant had been taken into custody based on
suspicion of DUI. Id. at 38-39. Trooper Carey explained that as a DRE expert,
he is trained to perform additional tests to examine specific physical indicators
such as blood pressure, pulse, pupil response, etc. Id. at 39.
Trooper Carey noted numerous indicators of Appellant’s intoxication,
including his slow coordination, slow and lethargic responses, rebound dilation
of his pupils, elevated blood pressure and pulse, body and eye tremors, and
his inability to estimate time in the Romberg balance test. Trooper Carey also
observed a “green, pasty film” on Appellant’s tongue, which is indicative of
the ingestion of marijuana. Id. at 41. Based on his observations and test
results, Trooper Carey determined that Appellant was “incapable of safely
operating a motor vehicle under the influence of cannabis.” Id. at 42. 2
Thereafter, Appellant was transported to a local hospital, where he
consented to a blood draw, which confirmed the existence of cannabis in
Appellant’s blood, measuring Delta 9 THC (the active ingredient in marijuana)
at 7.9 nanograms per milliliter and Delta 9 carboxy THC 9 (the metabolite of
THC) at 55 nanograms per milliliter. N.T. Trial, 12/4/18, at 25, 29.
____________________________________________
2 The parties use the terms “marijuana” and “cannabis” interchangeably.
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After Appellant was charged with the aforementioned DUI counts and
two summary offenses, he filed a suppression motion. After a hearing, the
trial court subsequently denied Appellant’s suppression motion. In doing so,
the trial court found that Trooper Black’s detention was supported by
reasonable suspicion that Appellant was under the influence of a controlled
substance. The trial court also suggested that Trooper Black did not escalate
the investigative detention into a custodial arrest when she transported
Appellant to her barracks for further evaluation from a drug recognition
expert. Trial Court Opinion, 11/28/18, at 3.
At a subsequent bench trial, on December 4, 2018, the trial court
convicted Appellant of two counts of DUI at 75 Pa.C.S.A. § 3802(d)(1)(i) (DUI
Controlled Substance – Schedule I – second offense); § 3802(d)(1)(iii) (DUI
Controlled Substance – Metabolite – second offense). The trial court acquitted
Appellant of the DUI charge under 75 Pa.C.S.A. § 3802(d)(2) (DUI Controlled
Substance – Impaired Ability – second offense).
On January 15, 2019, after finding Appellant’s charges merged for
sentencing, the trial court sentenced Appellant to ninety days to five years’
imprisonment. Appellant filed a timely appeal and complied with the trial
court’s direction to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
Appellant raised the following issues for review on appeal in his 1925(b)
statement:
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1. The Court erred in denying Appellant’s motion to suppress
by determining that there was a necessary level of suspicion
to detain [Appellant] beyond the initial traffic stop for
speeding when Trooper Black viewed only shaking and
constricted pupils on a bright sunny day, when the
Commonwealth failed to demonstrate that the Trooper
possessed the requisite training and experience to
determine non-alcohol impairment, when SFST’s were not
initiated prior to an extension of the stop’s duration by
Trooper Black to call an ARIDE officer, when [Appellant]was
observed to be driving in a smooth manner without obvious
weaving, and when [Appellant] did not smell of illegal
substances nor alcohol.
2. The Court erred in finding [Appellant] guilty of Counts 1 and
2 (DUI Controlled Substance –Metabolite) on a per se basis
when, under Pennsylvania Commonwealth law, marijuana
can be a substance prescribed to an individual and the Court
did not find evidence of Appellant’s impairment as evidenced
by a non guilty verdict on Count 3 (DUI Controlled
Substance – Impairment).
3. Insufficient evidence was presented by the Commonwealth
at trial to find [Appellant] guilty of Counts 1 and 2.
1925(b) Statement, at 1-2.
Appellant first claimed that the trial court erred in denying his
suppression motion as Trooper Black did not have the requisite suspicion to
detain him beyond the initial traffic stop. Our standard of review is as follows:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court's factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court's legal conclusions are erroneous. Where,
as here, the appeal of the determination of the suppression court
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turns on allegations of legal error, the suppression court's legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa.Super. 2019) (citations
and quotation marks omitted). In addition, “our scope of review from a
suppression ruling is limited to the evidentiary record that was created at the
suppression hearing.” Commonwealth v. Rapak, 138 A.3d 666, 670
(Pa.Super. 2016) (citing In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013)).
In analyzing Appellant’s suppression challenge, we are guided by the
following principles:
[the] Fourth Amendment of the Federal Constitution and Article I,
Section 8 of the Pennsylvania Constitution protect individuals from
unreasonable searches and seizures. To secure the right of
citizens to be free from such unreasonable intrusions, courts in
Pennsylvania require law enforcement officers to demonstrate
ascending levels of suspicion to justify their interactions with
citizens as those interactions become more intrusive. We have
long recognized that there are three levels of intrusion involved in
interactions between members of the public and the police. The
first is a mere encounter, which requires no level of suspicion at
all. The second level is an investigative detention, which must be
supported by reasonable suspicion. Finally, the third level is an
arrest or custodial detention, which must be supported by
probable cause.
Commonwealth v. Soto, 202 A.3d 80, 90 (Pa.Super. 2018) (quoting
Commonwealth v. Walls, 53 A.3d 889, 892–93 (Pa.Super. 2012)).
Appellant concedes that the initial traffic stop of his vehicle was lawful
as Trooper Black had observed Appellant’s vehicle exceeding the speed limit
by 20 mph. The parties and trial court agree that Trooper Black extended the
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initial traffic stop into a separate investigative detention when she detained
Appellant so that he could evaluated by Trooper Highhouse, who was certified
in advanced impaired driving assessment.
Appellant specifically challenges whether Trooper Black had reasonable
suspicion to detain Appellant beyond the initial stop to assess whether he was
under the influence of a controlled substance. It is well-established that:
[a] police officer may detain an individual in order to conduct
an investigation if that officer reasonably suspects that the
individual is engaging in criminal conduct. Commonwealth v.
Cook, 558 Pa. 50, 735 A.2d 673, 676 (Pa. 1999). ‘This standard,
less stringent than probable cause, is commonly known as
reasonable suspicion.’ Id. In order to determine whether the
police officer had reasonable suspicion, the totality of the
circumstances must be considered. In re D.M., 566 Pa. 445, 781
A.2d 1161, 1163 (2001). In making this determination, we must
give ‘due weight ... to the specific reasonable inferences [the
police officer] is entitled to draw from the facts in light of his
experience.’ Cook, 735 A.2d at 676, quoting Terry v. Ohio, 392
U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Also, the
totality of the circumstances test does not limit our inquiry to an
examination of only those facts that clearly indicate criminal
conduct. Rather, ‘[e]ven a combination of innocent facts, when
taken together, may warrant further investigation by the police
officer.’ Cook, 735 A.2d at 676.
In Interest of A.A., ___Pa.___, 195 A.3d 896, 904 (Pa. 2018) (quoting
Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1189 (2004)).
In this case, after Appellant was initial stopped for traveling 20 mph
over the speed limit, Trooper Black noticed that Appellant was shaking
“uncontrollably” and exhibited constricted pupils, which Trooper Black
described as “pinpoint.” N.T. at 7, 11. Appellant could not explain these
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symptoms. Further, Trooper Black specifically noted that she did not smell
any odor of alcohol or marijuana in the vehicle.
Based on these observations, Trooper Black surmised that Appellant was
under the influence of a controlled substance and felt assessing Appellant’s
intoxication level was beyond her training level. As such, Trooper Black
detained Appellant to wait for the assistance of Trooper Highhouse, who was
certified to perform advanced roadside impair driving evaluations.
Viewing the totality of the circumstances in this case, we conclude that
the trial court did not err in finding Trooper Black had reasonable suspicion
that Appellant had driven under the influence of a controlled substance other
than alcohol, which justified her decision to extend the detention of Appellant
for further investigation.
We note that Appellant devotes the majority of his brief to argue that
he was subjected to an illegal arrest unsupported by probable cause when
Trooper Black transported him to the state police barracks for further testing
by a Drug Recognition Expert.
However, Appellant did not raise this specific argument in his 1925(b)
statement. This Court has emphasized that “issues not raised in a Rule
1925(b) statement will be deemed waived for review. An appellant's concise
statement must properly specify the error to be addressed on appeal. In other
words, the Rule 1925(b) statement must be “specific enough for the trial court
to identify and address the issue [an appellant] wishe[s] to raise on appeal.”
Commonwealth v. Sexton, ___A.3d___, 2019 PA Super 325 (Pa.Super. Oct.
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28, 2019) (quoting Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super.
2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007)).
Appellant’s 1925(b) statement limits his suppression challenge to claim
that Trooper Black did not have the requisite suspicion to extend the initial
traffic stop to seek ARIDE testing by Trooper Highhouse to determine if
Appellant was driving under the influence of a controlled substance. As
Appellant did not specifically raise any argument concerning the validity of his
arrest in his 1925(b) statement, Appellant has waived this issue on appeal.
Appellant also challenges the sufficiency of the evidence supporting his
DUI convictions. Our standard of review is as follows:
The standard we apply 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 fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying the above test, we may not weigh the evidence and
substitute our judgment for [that of] the fact-finder. In
addition, we 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 fact-finder 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 trier 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. Leaner, 202 A.3d 749, 768, (Pa.Super.
2019) (citation omitted). To reiterate, the jury, as the trier of
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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. Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super.
2014) (citation omitted). In conducting review, the appellate court
may not weigh the evidence and substitute its judgment for the
fact-finder. Id. at 39-40.
Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa.Super. 2019).
Appellant was convicted of two counts of DUI under Sections
3802(d)(1)(i) and (iii) of the Vehicle Code, which provide:
(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:
(1) There is in the individual's blood any amount of a:
(i) Schedule I controlled substance, as defined in the
act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance,
as defined in The Controlled Substance, Drug, Device
and Cosmetic Act, which has not been medically
prescribed for the individual; or
(iii) metabolite of a substance under subparagraph (i)
or (ii).
75 Pa.C.S.A. § 3802(d). Marijuana has been designated as a Section I
controlled substance. See 35 P.S. § 780-104(1)(iv).
This Court has provided that “a conviction under Section 3802(d)(1)
does not require that a driver be impaired; rather, it prohibits the operation
of a motor vehicle by any driver who has any amount of specifically
enumerated controlled substances in his blood, regardless of impairment.”
Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa.Super. 2007), aff’d,
596 Pa. 351, 943 A.2d 262 (2008) (emphasis in original).
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Appellant’s sufficiency challenge is meritless as the Commonwealth
presented evidence that Appellant drove a vehicle with measured amounts of
marijuana and its metabolite in his blood in violation of both Sections
3802(d)(i) and (iii).
We are not persuaded to reach a different result by Appellant’s citation
to the Medical Marijuana Act, which states that “[s]cientific evidence suggests
that medical marijuana is one potential therapy that may mitigate suffering in
some patients and also enhance quality of life.” 35 P.S. § 10231.102(1).
Appellant has never claimed that he was prescribed marijuana. Moreover,
even assuming arguendo that Appellant was prescribed marijuana, “[t]he fact
that a person charged with violating this chapter is or has been legally entitled
to use alcohol or controlled substances is not a defense to a charge of violating
this chapter.” 75 Pa.C.S.A. § 3810. As such, the trial court did not err in
denying Appellant’s sufficiency claims.
For the foregoing reasons, we affirm the judgment of sentence
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/31/2020
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Com. v. Grimes, H.
Combined Opinion