Com. v. Mervin, C. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHARLES M. MERVIN :
:
Appellant : No. 989 EDA 2018
Appeal from the Judgment of Sentence March 1, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0010769-2017
BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY OTT, J.: FILED MAY 07, 2019
Charles M. Mervin appeals from the judgment of sentence imposed on
March 1, 2018, following a bench trial, in the Court of Common Pleas of
Philadelphia County. Mervin was convicted of one count of DUI: Controlled
Substance (marijuana) – Impaired Ability.1 He was sentenced to a term of 72
to 144 hours’ incarceration, with immediate parole after 72 hours. In this
timely appeal, Mervin argues there was insufficient evidence to support his
conviction. After a thorough review of the submissions by the parties, relevant
law, the certified record, we affirm.
The standard of review for claims of insufficient evidence is well-
settled. With respect to such claims, we consider the evidence in
the light most favorable to the Commonwealth as verdict winner.
Commonwealth v. Barnes, 871 A.2d 812, 819 A.2d Super.
2005). In that light, we decide if the evidence and all reasonable
inferences from that evidence are sufficient to establish the
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1 75 Pa.C.S. § 3802(d)(2).
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elements of the offense beyond a reasonable doubt. Id. We keep
in mind that it was for the trier of fact to determine the weight of
the evidence and the credibility of witnesses. Id. The jury was
free to believe all, part or none of the evidence. Id. This Court
may not weigh the evidence or substitute its judgment or that of
the factfinder. Id.
Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).
We recite the facts underlying this matter as related in the trial
court opinion.
On December 31, 2016, at approximately 12:03 am,
Trooper Baines, Badge #13099, of the Pennsylvania State Police
was on routine patrol in a marked Ford Taurus on Interstate 76
Eastbound at the intersection of Interstate 676 Eastbound with his
partner, Trooper Tray. Trooper Baines had been on the force
approximately two months but Trooper Tray was a far more
experienced officer, having been a trooper for over a decade as of
December 31, 2016. At that date, time, and location, Trooper
Baines observed Mr. Charles Mervin in a black Dodge Dart,
registration number JYE8566, traveling eastbound on I-76 to I-
676 East.
Troopers Baines and Tray were alerted to [Mervin] when they
observed
The vehicle driving aggressive. He was tailgating the vehicle
in front of him…There was maybe not even a car’s length in
front of his vehicle. He was on – almost directly behind the
vehicle ahead of his…while he was driving within his lane,
he was weaving kind of, not driving straight, but side-to-
side.
Additionally, using a police vehicle speedometer, Trooper Baines
clocked [Mervin] traveling “at 70 miles per hour in a 50 miles per
hour zone.”
After observing [Mervin’s] driving for at least one-half mile,
Trooper Baines activated his “emergency lights and sirens.” “The
vehicle came to stop on the left travel lane. [Trooper Tray] had
to exit the vehicle and advise the operator to move to the right
shoulder which he complied.” Trooper Baines described that
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stretch of road as “So it’s about three lanes, and there is a right
shoulder right where Broad Street exit is,” and [Mervin] pulled
over to “the left lane, directly next to the wall separating the east
and westbound lanes,” where he was blocking other traveling
cars.
Once [Mervin] pulled over to the shoulder, Trooper Baines
“approached the driver’s side. [He] advised the operator for the
reason for the stop. And while during the interaction, [he]
observed a strong odor of burnt marijuana emanating from the
vehicle.” Trooper Baines was familiar with the odor of both burnt
and raw marijuana through training at the State Police Academy.
Trooper Baines “was at the driver’s side door leaning down directly
face-to-face with the operator” when he observed that [Mervin’s]
“eyes were glassy and bloodshot, during our interactions he was
laughing and giggling…” He also seemed to have difficulty
obtaining his driver’s license…registration and insurance cards…He
was fumbling through his wallet, unsure where to find them, and
just not coherent in obtaining them.” [Mervin] stated that he “had
smoked marijuana 30 minutes prior…to the traffic stop.”
Once [Mervin] located all of his documents, Trooper Baines
asked [Mervin] to exit his vehicle and administered field sobriety
tests, in accordance with his training. Trooper Baines
administered the “horizontal gaze nystagmus test, walk and turn,
and the one leg stand.” Prior to each test, Trooper Baines asked
[Mervin] if he had any medical conditions which would impair his
ability to successfully complete the test. During the walk and turn
test, [Mervin] indicated six out of eight clues of intoxication.
“During the walking phase, he stopped walking, he missed heel-
to-toe, he stepped off the line, and he also took an incorrect
number of steps during his first nine steps. And also did an
improper turn to take his nine back.” During the one leg stand,
[Mervin] indicated four out of four clues of intoxication. “He
hopped, he was swaying during the test, he raised his arms, and
he put his foot down as well prior to the end of the 30-seconds.
Based upon his observations of [Mervin] prior to and during the
field sobriety tests administered, Trooper Baines formed the
opinion that [Mervin] “was unfit to operate a motor vehicle due to
the use of marijuana.” No blood evidence was admitted, and no
Drug Recognitions Expert was enlisted to further observe and
administer additional field tests on [Mervin].
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Trial Court Opinion, 5/22/2018, at 1-3 (citations to notes of testimony
omitted).
Mervin now asserts the trial court convicted him based upon the “smell
of marijuana made by a Trooper who is not a trained Drug Recognition
Evaluator, no blood test results and an individual who was stopped for
travelling approximately ten miles over the posted speed limit[.]” Mervin’s
Brief at 7-8. To support this allegation, Mervin cites Commonwealth v.
DiPanfilo, 993 A.2d 1262 (Pa. Super 2010), for the proposition that a
conviction for marijuana-related DUI must be supported by expert testimony.
All parties and the trial court agree that no such expert testimony was
produced. Therefore, Mervin claims, his conviction was not supported by
sufficient evidence. This argument is without merit.
Initially, we note the trial court cites far more evidence than that which
Mervin recounts. In reviewing this claim, we are required to examine the
evidence in the light most favorable to the Commonwealth, as verdict winner,
not, as Mervin would have, in the light most favorable to him. Evidence
showed Mervin was travelling approximately 20 miles over the posted speed
limit, not ten.2 Mervin admitted to having smoked marijuana 30 minutes prior
to the traffic stop. Trooper Baines was met with a strong odor of marijuana
when he approached Mervin’s car. Mervin was weaving within his lane of
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2 Trooper Baines testified Mervin was travelling 70 mph in a 50 mph zone.
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travel, unable to keep his vehicle in a straight path. At 70 miles per hour,
Mervin was tailgating the car in front of him. When pulled over, Mervin
stopped his car in a travel lane rather than pulling over to the shoulder of the
road; he had to be told to move the car to the safer location. Trooper Baines
observed Mervin had glassy and bloodshot eyes. Mervin had trouble finding
his driver’s license, registration, and insurance card and was laughing and
giggling through the efforts. Mervin failed all of the field sobriety tests he was
asked to perform. This is significantly more evidence than Mervin would have
us believe was presented.
Additionally, DiPanfilo does not require expert testimony in all
circumstances involving DUI-marijuana. Rather, DiPanfilo states:
We acknowledge that [Commonwealth v.] Etchison, [916 A.2d
1169 (Pa. Super. 2007)] recognized a need for expert testimony
in the area of marijuana, a commonly-known drug like cocaine
and alcohol. However, we do not read Etchison as requiring
expert testimony in every marijuana case,FN or (as Appellant
seems to suggest) every illegal-drug case.
FN. For example, if a police officer stopped a driver who
was driving erratically, and the driver then rolled down his
window and greeted the officer through a cloud of
marijuana smoke, showing the typical signs of heavy
marijuana use, it would be difficult to imagine it would be
necessary to establish the link between the erratic driving
and the driver’s marijuana use.
Commonwealth v. DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010).3
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3We note Etchison is also distinguishable from the instant matter in that the
only evidence of marijuana use there was a blood test demonstrating 53
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Our review of the certified record leads to the inescapable conclusion
that the instant factual situation virtually mirrors the example given in
DiPanfilo for the circumstance where no expert testimony is required. We
agree with the reasoning of DiPanfilo that there are some circumstances
where lay observations, especially those observations by a trained police
officer4, provide sufficient information to conclude the erratic driving was
linked to the marijuana usage.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/7/19
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nanograms of metabolites of cannabinoids. As the concurring and dissenting
opinion of Judge John T. Bender noted, the Commonwealth presented no
evidence of recent use – including no odor of marijuana and no “damning
admission” of recent use, Etchison, supra at 1175, both of which are present
instantly.
4While Trooper Baines was not a trained Drug Recognition Evaluator, he was
generally trained to detect signs of intoxication and the inability to safely
operate a motor vehicle, as well as the indicia of marijuana use.
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