Com. v. Flood, J. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JEREMY M. FLOOD :
:
Appellant : No. 1139 WDA 2021
Appeal from the Judgment of Sentence Entered April 9, 2021
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007079-2019
BEFORE: PANELLA, P.J., OLSON, J., and SULLIVAN, J.
MEMORANDUM BY OLSON, J.: FILED: May 11, 2022
Appellant, Jeremy M. Flood, appeals from the judgment of sentence
entered on April 9, 2021, as made final by the denial of Appellant’s
post-sentence motion on August 20, 2021. We affirm.
The Commonwealth charged Appellant with a number of crimes,
including driving under the influence (“DUI”) of alcohol (general impairment)
and DUI of a drug or combination of drugs.1 The trial court thoroughly
summarized the underlying facts of this case:
on May 17, 2019, Patrick Lucas, a police officer who was
employed with [the] Avalon Police Department on that date,
was dispatched to the 700 block of Hemlock Avenue due to a
report of an "unknown disorderly male outside pounding on
a door and making a lot of commotion." Upon arrival, Officer
Lucas was advised that the individual had left and struck a
retaining wall as he was departing. The damage to the
retaining wall was observed by Officer Lucas. Officer Lucas
____________________________________________
1 75 Pa.C.S.A. §§ 3802(a)(1) and (d)(2), respectively.
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was provided with identifying information for this individual,
and ultimately, he was located by the [Bellevue] Police
Department on Birmingham Street.
Officer Lucas left Hemlock Avenue and proceeded to
Birmingham Street where he encountered [Appellant].
Officer Lucas noted that [Appellant’s] vehicle had damage to
the paint and was dented. Officer Lucas testified that
[Appellant] was in the driver seat of the vehicle and the
vehicle was turned off. Officer Lucas approached [Appellant]
to discuss the incident on Hemlock Avenue. [Appellant]
stated that he went to visit his friend Keith, that he
remembered hitting the retaining wall with his vehicle as he
was leaving, but he did not think that there was any damage
to the wall. Officer Lucas testified that during this
conversation, [Appellant’s] behavior was strange.
Specifically, Officer Lucas testified that [Appellant] was
unsteady as he sat, was speaking very quickly, had an
atypical cadence and volume pattern to his voice, and kept
looking around very quickly. At this point, based upon his
training and experience, Officer Lucas believed [Appellant] to
be under the influence of alcohol and/or a controlled
substance and asked him to step out of the vehicle.
Once [Appellant] had exited the vehicle, Officer Lucas
detected an odor of alcohol and noticed that [Appellant] was
"extremely unsteady on his feet." In addition to the inability
to control the volume of his voice, [Appellant] was making
quick deliberate movements and speaking over officers.
Officer Lucas administered three [] standard field sobriety
tests: the horizontal gaze nystagmus test; the walk and turn
test; and the one leg stand test. [Appellant] exhibited clues
of impairment on each test. Specifically, [Appellant]
exhibited [four of six] clues on the horizontal gaze nystagmus
test; [seven of eight] clues on the walk and turn test; and
[four of four] clues on the one leg stand test. [Appellant]
was asked to submit to a blood test, and he refused. . . .
During [Appellant’s] transportation to Avalon Police
Department, he was irritated and agitated. Officer Lucas
testified that[,] . . . in addition to smelling alcohol, . . .
[Appellant’s] erratic behavior was similar to that of someone
who was under the influence of a stimulant. . . .
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After [Appellant] was taken into custody, a search was
conducted of his vehicle. As a result of that search, police
officers recovered an oxycodone five-milligram pill and an
empty prescription bag for suboxone.
[Appellant] testified on his own behalf. [Appellant] admitted
to operating his vehicle on May 17, 2019. [Appellant]
testified that he suffers from [attention deficit hyperactivity
disorder (“ADHD”), post-traumatic stress disorder (“PTSD”),]
and other mental health conditions. [Appellant] testified that
his behavior and response to the officers on May 17, 2019
was attributable to these conditions. Other than his
testimony, which lacked credibility, [Appellant] did not
present any evidence that any of these conditions would
create an inability to successfully complete the field sobriety
tests or mimic signs of impairment.
Trial Court Opinion, 10/29/21, at 3-5 (citations omitted).
Following a bench trial, the trial court found Appellant guilty of DUI
(general impairment) and DUI of a drug or combination of drugs and, on April
9, 2021, the trial court sentenced Appellant to serve three to six days in jail
and a term of six months of probation. The trial court denied Appellant’s
post-sentence motion on August 20, 2021 and Appellant filed a timely notice
of appeal. Appellant raises the following claim on appeal:
Was the evidence insufficient as a matter of law to sustain
the conviction of [DUI] under either 75 Pa.C.S.A.
§ 3802(a)(1) or (d)(2) insofar as the Commonwealth failed
to prove beyond a reasonable doubt that [Appellant] was
under the influence of a drug or a combination of drugs, or
after imbibing a sufficient amount of alcohol to a degree that
impairs the individual’s ability to safely drive, operate or be
in actual physical control of the movement of the vehicle?
Appellant’s Brief at 4.
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Appellant claims that the evidence was insufficient to support his
convictions. We review Appellant’s sufficiency of the evidence challenge under
the following standard:
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. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations
and quotation marks omitted).
First, Appellant claims, the evidence was insufficient to support his DUI
conviction under Section 3802(d)(2) because “no evidence was presented
that[,] at the time of the stop, [Appellant] had recently ingested a controlled
substance or any other drug.” Appellant’s Brief at 14. Appellant specifically
observes that: “[n]o witnesses were presented [that Appellant] consume[d]
drugs that night;” “[n]o blood was drawn and therefore, there was no medical
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evidence that [Appellant] had consumed any drugs;” and, the arresting officer
did not obtain a drug recognition expert (“DRE”) evaluation as to whether
Appellant was under the influence of a controlled substance. Id.Appellant also claims that the evidence was insufficient to support his
DUI conviction under 3802(a)(1), as: “[t]he arresting officer never observed
[Appellant] driving;” “no alcohol was found in [Appellant’s] car;” and, the
arresting officer did not testify that Appellant’s “eyes were glossy, that his
speech was slurred, that he had a staggered or stumbling gait, or that he had
difficulty standing.” Id. at 17. Appellant’s claims fail.
Appellant was convicted of violating 75 Pa.C.S.A. §§ 3802(a)(1) and
(d)(2). These subsections declare:
(a) General impairment.--(1) An individual may not drive,
operate or be in actual physical control of the movement of a
vehicle after imbibing a sufficient amount of alcohol such that
the individual is rendered incapable of safely driving,
operating or being in actual physical control of the movement
of the vehicle.
...
(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(a)(1) and (d)(2).
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Regarding DUI (general impairment), this Court has previously
explained:
[T]he Commonwealth [must] prove the following elements:
the accused was driving, operating, or in actual physical
control of the movement of a vehicle during the time when
he or she was rendered incapable of safely doing so due to
the consumption of alcohol. With respect to the type,
quantum, and quality of evidence required to prove a general
impairment violation under Section 3802(a)(1), the
Pennsylvania Supreme Court [has stated]:
Section 3802(a)(1) . . . is a general provision and
provides no specific restraint upon the
Commonwealth in the manner in which it may prove
that an accused operated a vehicle under the
influence of alcohol to a degree which rendered him
incapable of safe driving. . . . The types of evidence
that the Commonwealth may proffer in a subsection
3802(a)(1) prosecution include but are not limited to,
the following: the offender's actions and behavior,
including manner of driving and ability to pass field
sobriety tests; demeanor, including toward the
investigating officer; physical appearance,
particularly bloodshot eyes and other physical signs
of intoxication; odor of alcohol, and slurred speech.
Blood alcohol level may be added to this list, although
it is not necessary and the two[-]hour time limit for
measuring blood alcohol level does not apply. Blood
alcohol level is admissible in a subsection 3801(a)(1)
case only insofar as it is relevant to and probative of
the accused's ability to drive safely at the time he or
she was driving. The weight to be assigned these
various types of evidence presents a question for the
fact-finder, who may rely on his or her experience,
common sense, and/or expert testimony. Regardless
of the type of evidence that the Commonwealth
proffers to support its case, the focus of subsection
3802(a)(1) remains on the inability of the individual
to drive safely due to consumption of alcohol - not on
a particular blood alcohol level.
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Commonwealth v. Teems, 74 A.3d 142, 145 (Pa. Super. 2013) (citations
omitted).
In order to convict a defendant of DUI under Section 3802(d)(2), the
Commonwealth must demonstrate “that [the defendant] was under the
influence of a drug to a degree that impairs his or her ability to safely drive or
operate a vehicle.” Commonwealth v. Williamson, 962 A.2d 1200, 1204
(Pa. Super. 2008) (citations and quotation marks omitted). Section
3802(d)(2) “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 341, 345 (Pa. Super. 2012)
(citations and quotation marks omitted). “[E]xpert testimony is not necessary
to establish impairment [due to a controlled substance] under [Section]
3802(d)(2) where there exists other independent evidence of impairment.”
Commonwealth v. Gause, 164 A.3d 532, 538 (Pa. Super. 2017). A “lay
witnesses may testify to someone's readily observable physical condition or
appearance that does not require medical training.” Gause, 164 A.3d at 538
(citations omitted).
As the trial court ably explained, the evidence in this case was sufficient
to convict Appellant of DUI under both Section 3802(a)(1) and (d)(2):
[Appellant] was observed to be in the driver seat of his
vehicle. [Appellant] admitted to operating the vehicle and to
hitting a retaining wall with his vehicle on that evening shortly
before his encounter with Officer Lucas. Officer Lucas noted
an odor of alcohol after [Appellant] exited his vehicle. During
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the traffic stop, [Appellant’s] behavior and speech patterns
were consistent with someone who was under the influence
of alcohol and controlled substances. [Specifically,
Appellant:] was unstable both while seated in his vehicle and
on his feet when he exited his vehicle[; “couldn’t control the
volume of his voice;” “was talking very, very quickly;”
“wouldn’t let the officers finish speaking;” “was looking
around very quickly;” and, was making “quick deliberate
movements.”] Further, [Appellant] was unable to
successfully complete any of the three standard field sobriety
tests administered to him by Officer Lucas [and the officers
discovered a five-milligram oxycodone pill and an empty
prescription bag for suboxone in Appellant’s vehicle]. Based
upon the totality of the evidence presented at trial, the
evidence was sufficient to support a conviction for [DUI]
under 75 Pa.C.S.A. § 3802(a)(1) and 75 Pa.C.S.A.
§ 3802(d)(2).
Trial Court Opinion, 10/29/21, at 6.
We agree with the trial court’s cogent analysis and conclude that
Appellant’s claims on appeal thus fail.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/11/2022
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