Com. v. Panick, S. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SUSAN A. PANICK :
:
Appellant : No. 1149 EDA 2019
Appeal from the Judgment of Sentence March 25, 2019
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001361-2018
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2019
Susan A. Panick appeals from judgment of sentence imposed March 25,
2019, in the Lehigh County Court of Common Pleas. The trial court sentenced
Panick to a term of six months’ intermediate punishment, with 30 days’ house
arrest on electronic monitoring, following her non-jury conviction of driving
under the influence (“DUI”) (controlled substances), careless driving, and
moving stopped or parked vehicle.1 On appeal, she argues the evidence was
insufficient to sustain her convictions of DUI and careless driving, and the trial
court demonstrated bias against her such that her due process rights were
violated. For the reasons below, we affirm.
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1 See 75 Pa.C.S. §§ 3802(d)(2), 3714(a), and 3333, respectively.
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The facts underlying Panick’s conviction as presented during her non-
jury trial were summarized by the trial court as follows:
[O]n December 25, 2017, at approximately 7:00 P.M., Constance
Harding was in her family room located at 8033 Glenwood Court,
New Tripoli, Lehigh County, Pennsylvania, when she observed a
car backing up onto her back lawn. As it was dark and snowy
outside, Ms. Harding was able to see the headlights from the
vehicle streaming into her family room. Consequently, she and
her husband went outside and found a vehicle stopped in their
backyard. When they arrived on scene, another neighbor,
Jason, and his wife were already there. The neighbors had been
[2]
driving home when they observed the subject vehicle backed up
onto the Harding[s’] bushes and possibly stuck on the Harding[s’]
lawn.
Mrs. Harding approached the vehicle and knocked on the window.
The driver, later identified as the Defendant, Susan Panick,
appeared to be confused, bewildered, and disoriented. [Panick]
indicated that she was alright, but that she had Chinese food in
the back seat for a party to which she was heading. Ms. Harding
and the neighbor asked if [Panick] could place her vehicle in park.
In response, [Panick] went in reverse and backed up further into
a ditch. At this point, [Panick’s] vehicle was approximately 30
[feet] into the Harding[s’] property, with the right tire in a ditch.
Eventually [Panick] placed her vehicle in park. Ms. Harding helped
[Panick] out of the vehicle, as she appeared to be unsteady. At
that time, the neighbor was able to utilize tow ropes and remove
the vehicle from the Harding[s’] lawn.
While the neighbor was towing the vehicle out of the ditch, Ms.
Harding spoke with [Panick]. [Panick] related that she was on her
way to a friend’s house on George Road and that she was traveling
from about five (5) minutes away. However, [Panick] stated that
she was coming from Hellertown, which is more than thirty (30)
minutes away. During the conversation, Ms. Harding noted that
[Panick’s] speech was slurred and she seemed to be confused.
[Panick] requested that they do not involve the police. However,
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2 Jason’s last name is not provided in the notes of testimony.
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Ms. Harding was concerned that [Panick] was not capable of
driving her vehicle safely, so she called the police.
At 7:36 P.M. that evening, Trooper Ahmad Norman of the
Pennsylvania State Police, Fogelsville Barrack, a drug recognition
expert, arrived on scene in the area of George and Carpet Roads,
New Tripoli, in full uniform and in a marked police vehicle for a
single car collision. He observed a vehicle in the opposite lane of
travel with its lights on, straddling the right fog line. After
speaking with Ms. Harding and the neighbors, Trooper Norman
approached the subject vehicle to speak with [Panick]. Upon his
approach, Trooper Norman requested that [Panick] activate the
emergency brake on the vehicle. Despite it being her vehicle,
[Panick] was not able to readily locate the emergency brake to
employ. During the conversation between Trooper Norman and
[Panick], Trooper Norman found [Panick] to appear to be frantic,
excited, disoriented, and incoherent at times. Also, Trooper
Norman detected the odor of alcohol about the vehicle and her
person. [Panick’s] eyes were bloodshot and glassy, and [her]
speech was slow. In addition, [Panick] constantly spoke over
Trooper Norman, and her responses were not always responsive
to the question posed.
Trooper Norman requested that [Panick] produce the appropriate
documents, including the registration and insurance for the
vehicle. [Panick] was fumbling through her paperwork and
appeared to be confused. [Panick] explained that she was on her
way to a party when she got lost. Her GPS had indicated that she
had arrived at her destination, but there was no driveway.
[Panick] expressed concern over missing the party and that the
Chinese food was getting cold. Trooper Norman inquired if
[Panick] had consumed alcohol earlier in the evening. [Panick]
denied having drunk anything that day, but admitted that she took
cough medicine as a sleep aid, anti-anxiety medicine, and pain
medication earlier in the day. Trooper Norman noted there was
an open bottle of prescription pills on the front seat. When
questioned about same, [Panick] advised the Trooper that they
were pain medication pills.
Trooper Norman requested that [Panick] exit the vehicle to
perform field sobriety tests. Initially, [Panick] refused, but then
she agreed and exited the vehicle. [Panick] did not perform well
on the field sobriety test. She interrupted the Trooper numerous
times, and would not follow the instructions. Consequently, the
Trooper stopped the testing. Then, he asked if she would consent
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to a PBT [breath] test. [Panick] consented, but had difficulty
following the directions and blowing as instructed. Without
completing the test, [Panick] walked away abruptly and sat in her
vehicle. Ultimately [Panick] was able to comply with the
instructions and she was positive for alcohol.[3]
Based on his training, experience, and observations of the scene,
Trooper Norman believed that [Panick] was incapable of safe
driving. When [Panick] was advised that she was being taken into
custody for suspicion of Driving Under the Influence, [Panick]
stated that she is “not going to jail,” and clenched her hands
around the steering wheel tightly in an effort to prevent her
removal from the vehicle. [Panick] had to be forcibly removed
from the vehicle. She was handcuffed, placed in the front seat of
Trooper Norman’s patrol vehicle, and transported to the
Pennsylvania State Police Fogelsville Barracks for additional
evaluation.
Upon arrival at the Fogelsville Barracks, the 12 step drug
recognition process was initiated. Trooper Norman administered
the Walk and Turn test in which [Panick] performed poorly. She
displayed numerous cues of impairment, including missing a heal-
to-toe step, stepping off the line, and turning abruptly instead of
taking small steps. Similarly, [Panick] displayed many cues
during the One Leg Stand test, including swaying, using her arms
for balance, and legs/body tremors. These tests confirmed
Trooper Norman’s opinion that [Panick] was under the influence
of a combination of controlled substances that rendered her
incapable of safe driving.6 Therefore, [Panick] was transported to
the Lehigh County Central Booking Center for a legal blood draw.
[Panick] consented to the same, and the blood was drawn at
10:55 P.M. The analysis of the blood drawn revealed the presence
of the following drugs, within the therapeutic range:
Amphetamine, Diphenhydramine, Clonazepam, 7-
Aminoclonazepan, Trazodone, and Quetiapine.
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6 Lisa Milinchuk, a certifying scientist at Health Network
Laboratories and an expert in forensic chemistry, testified
that the drugs present in [Panick’s] system all have side
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3 It merits mention that the subsequent blood draw revealed only controlled
substances, and no alcohol, in Panick’s blood. See N.T., 11/8/2018, at 57.
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effects including drowsiness and dizziness. In addition, she
opined that these drugs have an additive effect when used
in combination with each other.
Trial Court Opinion, 5/20/2019, at 4-7 (record citations omitted).
Panick was charged with DUI – controlled substances, careless driving,
moving stopped or parked vehicle, driving vehicle at safe speed, and operation
of motor vehicle without required financial responsibility.4 The case proceeded
to a non-jury trial on November 8, 2018. The trial court found Panick guilty
of the above-referenced three offenses, and not guilty of the other two
summary violations. On December 30, 2018, the trial court granted trial
counsel’s petition to withdraw because Panick had retained new counsel for
sentencing and appeal. Thereafter, on March 25, 2019, the court sentenced
Panick to a term of six months’ intermediate punishment, with thirty days’
house arrest and electronic monitoring, for her DUI conviction. The other
offenses resulted only in a fine. This timely appeal followed.5
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4 See 75 Pa.C.S. §§ 3802(d)(3), 3714(a), 3333, 3361, and 1786(f),
respectively.
5 On April 17, 2019, the trial court ordered Panick to filed a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Defense
counsel did not comply with that order. However, on May 29, 2019, counsel
moved to file a concise statement nunc pro tunc, asserting he did not receive
the court’s April 17th notice. The court granted the motion on May 31, 2019,
and directed counsel to file a concise statement within 10 days. Counsel
complied with the directive and filed a concise statement on June 10, 2019.
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In her first issue on appeal, Panick challenges the sufficiency of the
evidence supporting her convictions of DUI and careless driving. Our review
of a sufficiency claim is well-established:
We [view] all the evidence admitted at trial in the light most
favorable to the verdict winner, to determine whether there is
sufficient evidence to enable the fact-finder to find every element
of the crime beyond a reasonable doubt. We may not weigh the
evidence and substitute our judgment for the fact-finder ... [ ]
[who] 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. Spotti, 94 A.3d 367, 374 (Pa. Super. 2014) (en banc)
(internal citations and punctuation omitted), appeal dismissed as
improvidently granted, 132 A.3d 151 (Pa. 2016).
Panick was convicted of DUI under Subsection 3802(d)(2), which
provides, in pertinent part:
(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. § 3802(d)(2). Significantly, a prosecution under this subsection
does not require expert testimony to determine the amount of drugs in the
defendant’s blood. See Commonwealth v. Griffith, 32 A.3d 1231, 1239
(Pa. 2011). Rather, similar to a general impairment conviction under
Subsection 3802(a)(1), the focus is on the inability of the defendant to safely
drive, operate, or be in actual physical control of a vehicle after taking
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controlled substances (prescription or not), without consideration of the
amount of substances detectable in a blood test. See id. Panick was also
convicted of careless driving, which requires proof she drove “a vehicle in
careless disregard for the safety of persons or property[.]” 75 Pa.C.S. §
3714(a).
Here, Panick argues the Commonwealth failed to prove she was unable
to drive safely, and/or drove in careless disregard for the safety of persons or
property. See Panick’s Brief at 13-14. She insists the Commonwealth’s case
rested “largely on a subjective impression of a collection of traits attributable
to [her] health problems and overall demeanor.” Id. Panick explains:
The fact that a person has bloodshot eyes does not necessarily
establish intoxication; it also establishes a head cold, as Ms.
Panick testified. The fact that a person cannot perform the
physically demanding sobriety tests does not necessarily establish
intoxication; it also establishes that Ms. Panick had a long, painful
history of physical damage to her leg, hip, and back which
prevented her from successfully completing those test[s].
Likewise, the fact that a person exhibits a slow and slurred speech
pattern does not necessarily establish intoxication but could also
simply be a physical trait. Evidence that Ms. Panick was difficult
in that she did not follow instructions and talked over the trooper
does not establish intoxication; as the Court observed, it only
established a quirk of Ms. Panick’s personality.
Id. (record citation omitted). Indeed, Panick asserts the only evidence of her
purported inability to drive safely was the fact that she “backed off a narrow,
icy, unfamiliar road, on a dark night in an attempt to turn her vehicle around.”
Id. at 15. Furthermore, she insists that absent testimony to establish that
her demeanor was “directly attributable to her prescription medications, there
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is insufficient evidence to establish that she violated either Section 3802(d)(2)
or Section 3714.” Id.
Our review of the record reveals sufficient evidence to support the trial
court’s verdict. With respect to the DUI conviction, there is no dispute Panick
was under the influence of prescription drugs. Trooper Norman, a Drug
Recognition Expert, testified that Panick advised him of the prescription
medications she was taking to treat anxiety, depression, digestion issues,
pain, and sleep issues, as well as over-the-counter cough syrup. See N.T.,
11/8/2018, at 44. The trooper also observed a bottle of morphine pills on the
passenger seat of her car. See id. Although Panick testified the only
prescription drug she took on the day of the incident was Dexadrine to treat
her attention deficit disorder,6 Trooper Norman testified Panick told him she
took Dexadrine, Tramadol, Neurontin, and cough syrup between 5:00 p.m.
and 6:00 p.m. that evening, only an hour or two before the incident. See id.
at 58. When asked if any of the medications would impair a person’s ability
to drive, Trooper Norman testified that everyone’s tolerance level is different,
but in combination the drugs would “definitely [have] … an additive effect.”
Id. at 45. The Commownealth’s forensic chemistry expert, Lisa Milinchuk,
testified Panick’s blood test revealed therapeutic levels of amphetamine,
Diphenhydramine, Clonazepam, 7-Amino Clonazepam, Trazodone and
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6 See N.T., 11/8/2018, at 87.
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Queitiapine in her system.7 See N.T., 11/8/2018, at 75. Therefore, the
Commonwealth presented sufficient evidence that Panick was under the
influence of prescription narcotics.
However, the Commonwealth was still required to prove she was under
the influence of controlled substances to such a degree that it impaired her
ability “to safely drive, operate or be in actual physical control of the
movement of a vehicle.” 75 Pa.C.S. § 3802(d). The testimony of both Harding
and Trooper Norman provides ample evidence to support this finding. First,
Harding described Panick as “a little confused” and “kind of shaking” when she
approached Panick’s vehicle in her yard. N.T., 11/8/2018, at 11. Moreover,
when Harding and her neighbor asked Panick to put her car in park so they
could tow it out of the ditch, Panick drove in reverse, further into Harding’s
backyard. See id. Harding also testified that Panick did not seem to know
how long she had been driving, stating she came from five minutes away, but
the town where she lived was forty minutes away. See id. at 13. Lastly,
Harding stated Panick implored them not to call the cops. See id. at 16.
Trooper Norman, a trained Drug Recognition Expert, described Panick
as frantic, “incoherent at times,” and “very confused, disoriented.” Id. at 35,
37. He also noted her speech was slurred and she had bloodshot eyes. See
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7 Milinchuk explained: (a) amphetamine would typically be found in Adderall;
(b) Diphenhydramine is typically found in Benadryl; (c) Clonazepam and 7-
Amino Clonazepam are found in Valium or Xanax; and (d) Trazodone and
Queitiapine are anti-depressants. See id. at 76.
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id. at 36. Trooper Norman testified that based on his training and experience,
he believed Panick was “possibly … under the influence of some sort of drug,
alcohol or maybe a medical related incident.” Id. at 37. She could not locate
the emergency brake in her car when he asked her to apply it, and she
fumbled through her paperwork when he requested to see her documentation.
See id. at 36. At that point, Panick “mentioned that she didn’t want to get a
DUI.” Id. Although the trooper detected an odor of alcohol on her breath,
Panick insisted she did not have any alcoholic beverages that evening. See
id. at 37. She did, however, provide him with a list of her prescription
medications, and told him she took several of them between 5:00 and 6:00
p.m. See id. at 43-44, 58. Trooper Norman testified Panick refused to follow
directions when he attempted to conduct the field sobriety tests on the scene,
and displayed indications of impairment when she performed the tests at the
barracks. See id. at 39, 46. Panick did not tell the trooper she had any
medical issues that would compromise her ability to perform the tests. See
id. at 46, 60. Trooper Norman concluded that, in his opinion, Panick was
“incapable of operating the vehicle and she was, in fact, impaired by a drug
or combination thereof rendering that.” Id. at 67.
Although Panick provided alternative explanations for her behavior, the
trial court, as fact-finder, clearly did not credit her testimony. See Spotti,
supra. Moreover, she fails to acknowledge that the court also viewed the
video recording from Trooper Norman’s patrol car, and was, therefore, able to
compare, first hand, Panick’s behavior at the scene with the way she
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presented herself in court. See N.T., 11/8/2018, at 50-52. We conclude the
testimony of both Trooper Norman and Ms. Harding supports the trial court’s
determination that Panick was under the influence of controlled substances to
such a degree that she was incapable of driving safely or being in actual
physical control of her vehicle.
We note Panick provides very little argument concerning her careless
driving conviction. See Panick’s Brief at 13-14. “The mens rea requirement
applicable to § 3714, careless disregard, implies less than willful or wanton
conduct but more than ordinary negligence or the mere absence of care under
the circumstances.” Commonwealth v. Ford, 141 A.3d 547, 556 (Pa. Super.
2016), appeal denied, 164 A.3d 483 (Pa. 2016). In the present case, Panick’s
actions in backing over bushes8 and into a ditch, 30 feet into Harding’s yard,
supports the court’s determination that she drove in careless disregard for
property. See 18 Pa.C.S. 3714(a). Accordingly, Panick’s sufficiency challenge
fails.
Next, Panick argues the trial court demonstrated bias against her such
that her due process rights were violated, and she was denied the possibility
of a fair trial. See Panick’s Brief at 16. Panick contends the trial court did not
keep an open mind about her innocence as demonsrated by the court’s
“repeated misstatements [of] the law; reliance on the improper, uninformed
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8Harding testified Panick “crushed” the bushes in her yard that line the ditch
and sit about five feet off the road. N.T., 11/8/2018, at 26-27.
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quasi-expert testimony of [an] unqualified layperson to establish a necessary
element of several offenses; and a refusal to accept innocent explanations for
allegedly criminal acts.” Panick’s Brief at 20. Specifically, Panick refers to (1)
the court’s comment that she is not supposed to drive if she has any controlled
substances in her system;9 (2) Trooper Norman’s “completely uninformed,
uneducated lay opinion as to the functions and side effects of Ms. Panick’s
medications;”10 and (3) the court’s dismissal “out of hand” of the innocent
explanations for Panick’s behavior based on her “medical issues and personal
quirks.”11
Preliminarily, however, we must determine if this issue is waived.
Although Panick acknowledges trial counsel did not object to the court’s
comments, she insists “Pennsylvania’s appellate waiver doctrine is not strictly
applied to claims of judicial misconduct.” Panick’s Brief at 17. Citing to
Commonwealth v. Hammer, 494 A.2d 1054 (Pa. 1985), Panick argues
counsel is not required to make a timely objection when doing so would be
futile in light of the judge’s comments. See Panick’s Brief at 17. We disagree.
First, we note Hammer was abrogated by Commonwealth v. Grant,
813 A.2d 726 (Pa. 2002). Panick maintains it was overruled on other grounds.
However, we find procedurally, Hammer was on par with Grant. The
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9 See N.T., 11/8/2018, at 98.
10 Panick’s Brief at 23, citing N.T., 11/8/2018, at 44-45.
11 Id. at 27, citing N.T., 11/8/2018, at 114.
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Hammer Court overlooked trial counsel’s failure to object to court bias and
directly addressed the defendant’s claims on direct appeal. In Grant, the
Supreme Court specifically overruled Hammer, and held that, “as a general
rule, a petitioner should wait to raise claims of ineffective assistance of trial
counsel until collateral review.”12 Grant, supra, 813 A.2d at 738. Therefore,
Panick’s judicial bias claim is waived on direct appeal. See Commonwealth
v. Colon, 31 A.3d 309 (Pa. Super. 2011), appeal denied, 42 A.3d 1058 (Pa.
2012) (holding Hammer was overruled by Grant, and, therefore, defendant’s
challenge to trial court’s purportedly improper and biased remarks to and
questioning of defense witnesses was waived absent an objection at trial).
Nevertheless, we note even if we were to address Panick’s issue, we
would conclude she is entitled to no relief. Our review of the record from the
non-jury trial reveals the trial court understood the law applicable to Panick’s
case and displayed no bias or ill will towards her.
Panick first cites to the court’s discussion with her about the amount of
prescribed medication in her blood test. See Panick’s Brief at 21-22, quoting
N.T., 11/8/2018, at 98-88. She insists the court “very clearly misunderstood
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12 We note the facts of this case do not satisfy any of the exceptions to the
general deferral rule set forth in Grant. See Commonwealth v. Holmes,
79 A.3d 562, 563-564 (Pa. 2013) (holding trial courts may address
ineffectiveness claim on post-verdict motions and direct appeal when (1) the
counsel’s ineffectiveness is both apparent from the record and meritorious; or
(2) there is good cause shown and defendant voluntarily waives his right to
seek subsequent PCRA review); Commonwealth v. Delgros, 183 A.3d 352,
361 (Pa. 2018) (adopting third exception to Grant deferral rule when “the
defendant is statutorily precluded from obtaining subsequent PCRA review”).
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and misstated the law” when it asserted “the mere presence of medication in
[her] system was sufficient for a conviction for the DUI offense[.]” Panick’s
Brief at 22. However, Panick failed to cite to the next statement by the trial
court, in which the court summarized:
So if you’re going to take something to go to sleep at night and
it’s still in your system, in combination with five other things,
these people witnessed you and said you’re not capable of
driving.
N.T., 11/8/2018, at 99-100 (emphasis supplied). It is evident the court
understood that to find Panick guilty of DUI under Subsection 3802(d)(2), it
had to find there was some amount of controlled substances in her system,
and those controlled substances affected her ability to drive safely. See id.
at 106 (defense counsel states during closing “[i]t’s not just having medication
in your system but that the medication impairing your ability to safely drive a
vehicle[,]” to which the court responds, “Yes”).
Second, Panick contends the court improperly relied on “quasi-medical
opinions offered by two unqualified witnesses.” Panick’s Brief at 23. This
claim, however, does not demonstrate judicial bias, but rather, implicates the
weight and sufficiency of the evidence supporting the verdict. In any event,
Trooper Norman testified as a Drug Recognition Expert. See N.T., 11/8/2018,
at 31. Therefore, he was qualified to describe the “functions and side effects
of [] Panick’s medications[.]” Panick’s Brief at 23.
Third, Panick criticizes the trial court for exhibiting “a closed mind to
realistic non-criminal explanations for Ms. Panick’s physical disabilities,
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anxious state, and manner of speech.” Panick’s Brief at 28. However, our
review of the transcript reveals nothing more than the court’s annoyance with
Panick’s sometimes disrespectful behavior. Panick’s claim that the court failed
to credit her defense implicates the weight of the evidence, rather than
demonstrates judicial bias. Therefore, even if we were to address Panick’s
second issue, we would conclude she is entitled to no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/19
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