J-S88043-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEPHEN ANDREW STRASSBURG, :
:
Appellant : No. 587 EDA 2016
Appeal from the Judgment of Sentence September 3, 2015
in the Court of Common Pleas of Bucks County
Criminal Division, at No(s): CP-09-CR-0000929-2015
BEFORE: OLSON, RANSOM, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 17, 2017
Stephen Andrew Strassburg (Appellant) appeals from the judgment of
sentence entered September 3, 2015, after he was found guilty of, inter alia,
driving under the influence of a controlled substance (DUI), 3 rd offense.
Upon review, we affirm.
The trial court set forth the relevant factual background of this case as
follows.
On October 5, 2014, around 10:30 p.m., Officer Daniele
Leporace was on routine patrol in a marked vehicle in the area of
Elm Street and Evergreen Street of Warminster Township. He
observed a vehicle traveling at a very slow rate of speed and due
to the number of thefts from vehicles in area, he became
suspicious and followed the vehicle at a discreet distance. Based
on his own speedometer, he determined that the vehicle was
traveling only about 10 to 15 miles an hour in an area where the
speed limit was 25 miles per hour. Officer Leporace observed
that the license plate light was not functioning. Based on the
suspicious manner of driving in an area with numerous vehicular
*Retired Senior Judge assigned to the Superior Court.
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thefts from vehicles, and the fact that the license plate was not
illuminated, Officer Leporace stopped the vehicle. While
speaking to [] Appellant, Officer Leporace noticed that []
Appellant’s eyes were glassy, and his pupils were dilated and did
not react to light in a way that he, as a former trained EMT,
determined [to be] appropriate. These were indicators that []
Appellant was possibly under the influence.
Appellant admitted taking his prescription for [o]xycodone
earlier that night. [] Appellant was asked to step out of the
vehicle and the Officer instructed [] Appellant to perform three
field sobriety tests, and [he] failed all three of them. After
failing the tests, Appellant was transported to the hospital and
submitted to a blood test. The results showed [] Appellant had
435 nanograms per milliliter of [o]xycodone in his system.
Dr. Thomas Brettell, who was qualified as an expert
toxicologist, testified that the amount [] Appellant had in his
blood stream was four times the prescribed medication. In Dr.
Brettell’s opinion, that amount of [o]xycodone in someone’s
system could kill a person and certainly impair someone’s
driving.
[On August 5, 2015, following a jury trial, Appellant was
found guilty of, inter alia, the aforementioned crime and]
sentencing was held on September 3, 2015. [] Appellant was
sentenced on [count one, DUI, to] not less than two (2) years
nor more than five (5) years’ incarceration at a state correctional
institution, and to pay costs and fines. On [count three,
operating a vehicle with no rear lights,] he was ordered to pay
costs plus statutory fines, and on [count four, driving while
operating privileges are suspended or revoked,] he was
sentenced to ninety (90) days [of] incarceration at a state
correctional institution and a [$1,000] fine, which was to be
served consecutively to [c]ount [o]ne.
Trial Court Opinion, 4/1/2016, at 1-3.
Appellant filed a post-sentence motion on September 10, 2015,
requesting the trial court to modify his sentence. Specifically Appellant
requested the trial court to reconsider the length of his sentence, namely the
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imposition of consecutive versus concurrent sentences, and requested the
opportunity to present “additional information and reflections” to the trial
court. Motion to Modify/Reconsider Sentence, 9/1/2015, at 1
(unnumbered). A hearing was held, and the motion was subsequently
denied. This timely-filed appeal followed, wherein Appellant presents the
following inartfully phrased issues for our review.1
[1.] Whether the Commonwealth failed to meet its burden in
that the driving behavior exhibited by Appellant did not prove
beyond a reasonable doubt that Appellant was under the
influence of drugs to such a degree that he was rendered
incapable of safely driving and/or operating a motor vehicle.
[2.] Whether the Commonwealth failed to meet its burden in
that the expert testimony presented by Thomas A. Brettel,
PH.D., did not prove beyond a reasonable doubt that Appellant
was under the influence of drugs to such a degree that he was
rendered incapable of safely driving and/or operating a motor
vehicle.
[3.] Whether the trial court abused its discretion by not
considering factors already contemplated by the available
sentencing guidelines and sentencing Appellant outside the
standard range of the sentencing guidelines.
Appellant’s Brief 5-6 (unnecessary capitalization omitted).
Appellant’s first two issues challenge the sufficiency of the evidence to
sustain his DUI conviction. Accordingly, we bear in mind the following.
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
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
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
[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.
Further, in viewing the evidence in the light most favorable to
the Commonwealth as the verdict winner, the court must give
the prosecution the benefit of all reasonable inferences to be
drawn from the evidence.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal
quotation marks and citations omitted).
To be found guilty of driving under the influence of a controlled
substance, it must be proven that an individual is under the influence of a
controlled substance 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.S.C. § 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)
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Instantly, Appellant contends that the Commonwealth failed to prove
Appellant was under the influence of his prescribed medication, oxycodone,
to such a degree that it impaired his ability to drive safely. Appellant’s Brief
at 15. His argument is as follows:
The only driving behavior observed was that Appellant was
traveling slightly slower than the posted speed limit in a
residential neighborhood. There was no other erratic driving
behavior. There were no other cars on the road and, therefore,
traffic was in no way inhibited. In fact, the officer observed
Appellant complying with the traffic laws when he signaled
before making a turn. The Commonwealth, therefore, did not
produce any credible direct or circumstantial evidence of driving
under the influence and, as such, Appellant’s conviction must be
reversed.
Id.
Notably, Appellant ignores the fact that Officer Leporace administered
three sobriety tests, all of which Appellant failed. N.T., 8/5/2015, at 15-22.
This alone is sufficient to find that Appellant was incapable of driving safely.
See Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (“The
Commonwealth may prove that a person is incapable of safe driving through
the failure of a field sobriety test.”) (citation omitted). Furthermore,
Appellant ignores the undisputed testimony that Officer Leporace observed
Appellant’s “eyes to be dilated and glassy, and they were unreactive to [the
officer’s] flashlight.” N.T., 8/5/2015, at 11. Appellant appeared nervous,
and upon exiting the vehicle at the officer’s request, Appellant “lost his
balance and used his vehicle to push off it and to correct himself.” Id. at
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13-14. See Commonwealth v. Griffith, 32 A.3d 1231, 1240 (Pa. 2011)
(“An experienced police officer closely observed [defendant’s] behavior,
demeanor, unsteadiness, and inability to perform field sobriety tests, all of
which led him to request laboratory tests for the detection of controlled
substances in [defendant’s] blood. [Defendant] admitted taking one
prescription medication in the morning of the day of her arrest. Two other
Schedule IV controlled substances, to wit, Valium and an active metabolite
thereof, were detected in her blood. The Commonwealth’s evidence was
sufficient to establish, beyond a reasonable doubt, that [defendant] violated
subsection 3802(d)(2).”). See also Commonwealth v. Palmer, 751 A.2d
223, 228 (Pa. Super. 2000) (Affirming a defendant’s conviction of driving
under the influence of alcohol we noted that “a police officer who has
perceived a defendant’s appearance and acts is competent to express an
opinion as to the defendant’s state of intoxication and ability to safely drive
a vehicle. Given the officer’s training, experience and observations, the
evidence submitted by the Commonwealth was sufficient to sustain
[defendant’s] DUI conviction.”) (citation omitted).
Although we find the evidence presented was sufficient to sustain
Appellant’s conviction based upon Appellant’s failed field sobriety tests and
Officer Leporace’s observations, we briefly address Appellant’s second issue,
concerning Dr. Brettel’s testimony. In his brief Appellant sets forth the
following argument:
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Once again, in the present matter, the Commonwealth has
failed to establish that Appellant was under the influence of his
prescribed [o]xycodone to a degree that impaired his ability to
safely drive. Appellant is not arguing that expert testimony was
necessary to prove his guilt, as [] implied in the [trial court’s
opinion]. On the contrary, Appellant is asserting that Dr.
Brettel’s testimony about patients developing a tolerance to
prescribed medication. The Commonwealth, therefore, did not
produce any credible direct or circumstantial evidence of driving
under the influence and, as such, Appellant’s conviction must be
reversed.
Appellant’s Brief at 18. (italics in the original; citation omitted).
First, we note Appellant’s “argument” is essentially non-existent, and
his failure adequately to develop his issue impedes our ability to address it.
Nonetheless, a review of the entirety of Appellant’s brief reveals that he is
attempting to argue that because Dr. Brettel acknowledged that individuals
can develop a tolerance to prescribed medication over time, Dr. Brettel’s
testimony was insufficient to establish that Appellant was incapable of safely
driving. Id. at 12.
At trial, Dr. Brettel did acknowledge that an individual may develop a
tolerance to prescribed medications over time. N.T., 8/5/2015, at 65-66.
However, Dr. Brettel also testified that the amount of oxycodone found in
Appellant’s blood was four times the therapeutic level, and in his opinion, a
person with that amount in his system, even if he had built up a tolerance,
would not be able to function normally. Id. at 64-66. Specifically, Dr.
Brettel testified that an individual with that level of oxycodone in his or her
blood “would not be able to drive safely. They should not be on the road, in
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my opinion. It would impair their ability to operate the motor vehicle safely,
on how to react, to stop in case, you know, of an oncoming car or something
like that. They would be very slow to react to that.” Id. at 66.
Here, Appellant attempts to dispute the testimony of Dr. Brettel by
focusing solely on one part of his testimony. Such a position merely attacks
the credibility determinations of the fact-finder, not the sufficiency of the
evidence, and urges us to consider the evidence in the light most favorable
to him, rather than the verdict winner. No relief is due.
Based upon the foregoing, we cannot agree with Appellant that the
evidence presented was so unreliable or speculative as to preclude a finding
of guilt. Accordingly, Appellant’s sufficiency of the evidence challenge fails.
Appellant’s final issue challenges the discretionary aspects of his
sentence.
It is well settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.
Before [this Court may] reach the merits of [a challenge to
the discretionary aspects of a sentence], we must engage
in a four part analysis to determine: (1) whether the
appeal is timely [filed]; (2) whether Appellant preserved
his issue; (3) whether Appellant’s brief includes a concise
statement of the reasons relied upon for allowance of
appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is appropriate under
the sentencing code.... [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
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Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations
omitted).
The record reflects that Appellant timely filed a notice of appeal and a
motion for reconsideration of his sentence. However, Appellant has failed to
include in his brief a statement pursuant to Pa.R.A.P. 2119(f), 2 and the
Commonwealth has objected to this omission. Commonwealth’s Brief at 22.
Appellant, therefore, has waived this issue. See Commonwealth v. Roser,
914 A.2d 447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f)
statement does not automatically waive an appellant’s [discretionary aspects
of sentencing] argument; however, we are precluded from reaching the
merits of the claim when the Commonwealth lodges an objection to the
omission of the statement.”) (quoting Commonwealth v. Love, 896 A.2d
1276, 1287 (Pa. Super. 2006)).
In the alternative, this Court could find Appellant’s issue waived for
failing to raise it during sentencing or in his post-sentence motion. See
Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (holding
discretionary aspects claims not raised at sentencing or in a post-sentence
2
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting
Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (Pa.
2002)) (“An appellant must, pursuant to Pennsylvania Rule of Appellate
Procedure 2119(f), articulate ‘the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.’”).
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motion are not subject to our review, even if raised in 1925(b) statement
and addressed in the trial court’s 1925(a) opinion).
Accordingly, after a review of the briefs, record, and applicable case
law, we are not persuaded that any of Appellant’s issues warrants relief from
this Court.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2017
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