Com. v. Booth, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SHAYNE NATHANIEL BOOTH :
:
Appellant : No. 1064 MDA 2020
Appeal from the Judgment of Sentence Entered July 24, 2020
In the Court of Common Pleas of Fulton County Criminal Division at
No(s): CP-29-CR-0000099-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 01, 2021
Shayne Nathaniel Booth appeals from the judgment of sentence entered
following his bench-trial convictions for driving under the influence of a drug
or combination of drugs—impaired ability (“DUI”), possession of a controlled
substance, and possession of drug paraphernalia. See 75 Pa.C.S.A. §
3802(d)(2); 35 P.S. §§ 780-113(a)(16), (32).1 Booth argues the
Commonwealth failed to prove he was in physical control of the vehicle while
impaired. We affirm.
Pennsylvania State Trooper Seth Sprague testified that in November
2018 he responded to the Penns Village Shopping Center after receiving a
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* Retired Senior Judge assigned to the Superior Court.
1 The court also found Booth guilty of the summary offenses of registration
and certificate of title required and careless driving. 75 Pa.C.S.A. §§ 1301(a),
3714(a).
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report that a male driver and female passenger of a gray sedan in the parking
lot were arguing and the male struck himself in the head. N.T., 10/1/19, 4.2
Trooper Sprague arrived at the shopping center approximately two minutes
after receiving the call. Id. at 5. While he was en route, dispatch informed
him that the sedan had moved to a different spot in parking lot. Id.
When Trooper Sprague arrived, the sedan was in a parking space. Id.
at 6. He could not recall whether the engine was running, the keys were in
the ignition, or the headlights were on. Id. at 16. Booth was in the driver seat
and a female was in the passenger seat. Id. at 5. Booth had glassy, bloodshot
eyes and appeared fatigued. Id. While they were speaking, a hypodermic
needle fell from Booth’s pocket. Id. at 7. Booth said he had previously used
the needle to inject fentanyl into his arm. Id.
Trooper Sprague also observed a cotton swab, which is used when
injecting heroin, and glassine bags, which are drug packaging materials. Id.
at 7-8. The Trooper also observed that Booth’s pupils were restricted and he
had track marks on his arm. Id. at 8. He then asked Booth if there was
anything in the vehicle that he needed to know about, and Booth responded
that there was a firearm in the vehicle. Id. Trooper Sprague administered field
sobriety tests and determined that Booth “displayed signs of impairment as a
____________________________________________
2 Trooper Sprague and Booth testified at a hearing on the motion to suppress
evidence. The parties agreed to a stipulated bench trial, using the testimony
from the hearing.
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result of the test[s] and all [his] observations.” Id. at 9. A search of the vehicle
uncovered drugs and additional drug paraphernalia. Id. at 12.
Trooper Sprague testified that Booth told him that he and his girlfriend
had left Greencastle, Pennsylvania between approximately 9:00 and 9:30
a.m. and were attempting to purchase heroin in the parking lot. Id. at 9.
When they arrived, the couple started arguing because they were
“withdrawing and their dealer was taking too long.” Id. Both Booth and his
girlfriend told Trooper Sprague that they drove to the second parking spot to
be more inconspicuous. Id. Booth told Trooper Sprague that the last time he
injected fentanyl was approximately 10:00 p.m. the previous night. Id.
Booth also testified, stating that he arrived at the parking lot between
9:00 and 9:30 a.m. and was there for approximately 45 minutes before
Trooper Sprague arrived. Id. at 30-31. He was there to purchase fentanyl,
which he did when he arrived at the parking lot. Id. at 31. He testified that
after he and his girlfriend purchased the fentanyl, they prepared it and moved
to a more secluded section of the parking lot before injecting it. Id. Booth
testified he moved the car 15 to 20 minutes before Trooper Sprague arrived.
Id. at 37. He injected the fentanyl before Trooper Sprague’s arrival, but after
he moved to the second spot. Id. at 31. Booth testified that the keys were
not in the ignition when the trooper arrived. Id. at 33. Booth agreed that the
trooper found the drugs and drug paraphernalia in his vehicle, including wet
cotton, which, Booth conceded, indicates recent drug use. Id. at 35-36.
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The court found Booth guilty of DUI, possession of a controlled
substance, and possession of drug paraphernalia. In July 2020, it sentenced
Booth to 13 to 48 months’ incarceration followed by three months’ probation.
Booth filed a timely notice of appeal.
Booth’s brief asserts two sufficiency claims:
I. Whether the Commonwealth’s evidence was sufficient to
prove, beyond a reasonable doubt, that [Booth] was
“driving”, “operating”, or in “actual physical control of a
motor vehicle” while intoxicated or substantially impaired,
when [Booth] was parked in a public parking area, with no
engine running, no keys in the ignition, no lights illuminated.
II. Whether the Commonwealth’s evidence was sufficient to
prove, beyond a reasonable doubt, that [Booth] had
consumed controlled substances prior to “driving”,
“operating” or being in “actual physical control of a motor
vehicle”.
Booth’s Br. at 5.
These issues differ from those Booth raised in his Pa.R.A.P. 1925(b)
statement. Although the first issue in his Rule 1925(b) statement goes to
sufficiency of the evidence, the second issue challenges the denial of his
suppression motion:
a. [T]he Court committed an error of law in finding guilty of
Count 3-“Driving under the Influence of Drugs Impaired
Ability” in that the evidence of impaired ability to drive a
vehicle was and is insufficient to sustain a verdict of guilty
beyond a reasonable doubt.
b. [T]he Court committed error of law and abuse of
discretion in denying [Booth]’s suppression motion. The
court erroneously concluded that the issue of whether
[Booth] was in actual physical control of his vehicle is only
a jury question and should not be decided by the
suppression court. The decision on whether to suppress
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evidence, based on a claim of insufficient probable cause to
arrest Defendant for DUI, necessarily depends on the
suppression court initially deciding the existence of probable
cause on all of the material elements of DUI. Actual physical
control of a vehicle is one such necessary element that must
be decided prior to a decision on the sufficiency of probable
cause.
Pa.R.A.P. 1925(b) Statement, 9/2/20, ¶ 2. His first issue challenged the
sufficiency of the evidence regarding whether he had an impaired ability to
drive, but his second issue maintained that the lower court erred in denying
his suppression motion without determining whether he was in physical
control of the vehicle.
On appeal, Booth frames both issues as sufficiency issues in his
questions presented and argues the Commonwealth did not prove that he was
intoxicated or substantially impaired while driving, operating, or in actual
physical control of an automobile. Booth’s Br. at 8. He argues that Trooper
Sprague testified that he did not see Booth drive or operate the motor vehicle,
and that the trooper could not recall whether the engine was running, the keys
were in the ignition, or the headlights were illuminated. Further, Trooper
Sprague testified to signs of recent drug use, such as syringes, cotton balls,
metal spoons, and baggies. Booth argues that he was not in “actual physical
control” of the vehicle, as the testimony established nothing more than that
he was sitting in a vehicle while intoxicated and does not establish he
exercised control over the vehicle. Id. at 11-12. He claims that the trial court
erred in concluding that his last drug use was the previous night, noting Booth
testified he had injected fentanyl after he moved the car, but before Trooper
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Sprague arrived, and that the corroborating evidence supports a finding of
recent drug use. Id. at 12. Booth further contends that the Commonwealth
presented evidence of two opposing propositions and it therefore proved
neither. Id. (quoting Commonwealth v. Crompton, 682 A.2d 286 (Pa.
1995)). Booth also claims the court was “speculating as to [his] intoxication
from an admitted use of Fentanyl 12 hours before.” Id. at 13.
Booth waived his argument that the Commonwealth failed to present
sufficient evidence to find that he operated, drove, or was in actual physical
control of the vehicle while impaired because he did not include it in his Rule
1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”). Even if he had not waived it, we would
conclude it lacked merit, as the Commonwealth presented sufficient evidence
to prove all elements of DUI beyond a reasonable doubt.
“When reviewing a sufficiency of the evidence claim, we must determine
whether, when viewed in a light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
beyond a reasonable doubt.” Commonwealth v. Green, 204 A.3d 469, 484
(Pa.Super. 2019). “The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Id. at 484-85 (quoting Commonwealth v. Brown,
23 A.3d 544, 559 (Pa.Super. 2011) (en banc)).
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Subsection 3802(d)(2) prohibits driving, operating, or being in “actual
physical control of the movement of a vehicle” by an individual who is “under
the influence of a drug or combination of drugs to a degree which impairs
[one’s] ability” to do so safely. 75 Pa.C.S.A. § 3802(d)(2). “The term ‘operate’
requires evidence of actual physical control of the vehicle to be determined
based upon the totality of the circumstances.” Commonwealth v. Williams,
941 A.2d 14, 27 (Pa.Super. 2008) (en banc). Courts review various factors to
determine “whether a person had ‘actual physical control’ of an automobile”
including whether the motor was running, where the vehicle is located, and
“additional evidence showing that the defendant had driven the vehicle.” Id.(citation omitted). Further, “[t]he Commonwealth can establish that a
defendant had ‘actual physical control’ of a vehicle through wholly
circumstantial evidence.” Id. (citation omitted). In addition, “a police officer
may utilize both his experience and personal observations to render an opinion
as to whether a person is intoxicated.” Id. (quoting Commonwealth v.
Kelley, 652 A.2d 378, 382 (Pa.Super. 1994)).
Considered in its totality, the evidence was sufficient evidence to prove
that Booth was impaired by a controlled substance when he drove, operated,
or was in physical control of the vehicle. Although Trooper Sprague did not
observe Booth drive the vehicle, the Commonwealth can prove its case with
circumstantial evidence. Here, Trooper Sprague testified that he arrived
approximately two minutes after hearing the dispatch regarding the argument
and that, while he was en route, dispatch informed him that the car moved;
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Trooper Sprague observe that Booth had glassy, bloodshot eyes and he
showed signs of impairment from the field sobriety tests; and Booth told
Trooper Sprague he last used drugs the night before and drove to the parking
lot that morning. The trial court was free to not credit Booth’s testimony that
he used fentanyl after he moved the car to the second parking space, and to
believe Trooper Sprague’s testimony and Booth’s statements to him, which
were enough to establish Booth was in control of the vehicle while impaired.
Further, Crompton, relied on by Booth, is inapposite. There, a state
trooper testified at a suppression hearing that, while at the door waiting to
execute a search warrant, he saw an individual remain in a chair and not move
to answer the door when the trooper knocked and saw that same individual
move toward the kitchen when he knocked. 682 A.2d at 289. The
Commonwealth presented no evidence to explain the inconsistency. If the
individual had remained seated, the testimony would have established an
exception to the knock and announce rule. If the individual had moved toward
the kitchen, it would have established a separate exception to the rule. The
Pennsylvania Supreme Court concluded that, because this testimony was
“mutually exclusive,” it “failed to establish either exception.” Id. No similar
inconsistent and “mutually exclusive” testimony or evidence exists in this
case. Booth’s claims that the evidence did not suffice to establish that he was
in “actual physical control” of the vehicle, or that he had consumed controlled
substances before doing so, are meritless.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/01/2021
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