Com. v. Massey, R.

J-A19033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAY ALLEN MASSEY :
:
Appellant : No. 832 MDA 2021
Appeal from the Judgment of Sentence Entered June 8, 2021
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0002631-2020
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 14, 2022
Appellant, Ray Allen Massey, appeals from the judgment of sentence
entered by the Court of Common Pleas of Cumberland County, which, sitting
as finder of fact in Appellant’s bench trial, found him guilty on one count of
Driving Under the Influence—Controlled Substances, 75 Pa.C.S. § 3802(d)(2).
We affirm.
On July 13, 2020, at 12:48 a.m., Pennsylvania State Police Troopers
Paige Kulsa and David Highhouse observed Appellant driving 81 mph in a 65
mph zone on Interstate 81. The troopers followed Appellant as he continued
at this rate of speed for the next five to eight minutes, until they activated
their overhead lights and stopped Appellant. N.T. (Trial), 5/4/21, at 6.
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* Former Justice specially assigned to the Superior Court.
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Trooper Kulsa initiated the police-citizen encounter. Relying on her
training in identifying intoxication during traffic stops, she noticed Appellant’s
glossy and bloodshot eyes, his dry mouth during speech, and the strong odor
of marijuana emanating from inside the vehicle. N.T. at 5, 7, 8.
When she asked Appellant if he had recently smoked marijuana,
Appellant offered a denial, N.T. at 9, and he exhibited no difficulty in producing
his driving information. N.T. 13. Nevertheless, Trooper Kulsa suspected
marijuana intoxication and asked Appellant to alight from the truck for
Standard Field Sobriety Tests (SFSTs). When Appellant complied, the trooper
immediately detected an odor of marijuana on Appellant’s person. N.T. at 8.
First administered were three SFSTs, namely, the “Horizontal Gaze
Nystagmus”, “Walk-and-Turn”, and “One-Leg Stand” tests. The trooper
detected standard “clues”—deviant motions which suggest impairment—in the
latter two tests. Specifically, five out of a possible eight clues were observed
in the walk-and-turn, and one out of four possible clues, namely, loss of
balance, was observed in the one-leg stand. N.T. at 10.
Based on the positive results, Trooper Highhouse administered two
additional tests consistent with his Advanced Roadside Impaired Driving
Enforcement (ARIDE) training,1 namely, the “Convergence Test” (look at tip
of one’s own nose and return gaze forward) and the “Modified Romberg
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1ARIDE training focuses on the administration of tests designed for suspected
DUI-Controlled Substances cases.
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Balance Test”. N.T. at 11, 18-22 Notably, Appellant’s left eye failed to
converge during the convergence test, which the trooper identified as another
indication of drug-related—particularly marijuana—impairment. N.T. at 20.
The Romberg balance test (head back, arms out, count to thirty) also
produced marijuana intoxication clues of body and eyelid tremors. N.T. at 21
See Commonwealth v. Hensley, 276 A.3d 223 (unpublished memorandum)
(Pa. Super. filed on March 9, 2022) (recognizing tremors as a clue for
marijuana, as opposed to alcohol, intoxication). Finally, Appellant presented
with a green tongue and red conjunctiva (eyes), further suggesting recent
marijuana use, Trooper Highhouse testified. N.T. at 21.
Appellant was arrested on suspicion of DUI-Controlled Substances, 75
Pa.C.S. § 3802(d)(2) and transported to a local hospital, where he refused a
blood draw. At Appellant’s bench trial, the Commonwealth introduced the
above-referenced evidence, and the trial court found Appellant guilty.
On June 8, 2021, the trial court sentenced Appellant to not less than 72
hours nor more than six months’ imprisonment, plus costs and a $1,000 fine.
After the trial court’s June 26, 2021 denial of Appellant’s post-sentence
motions, Appellant filed a timely notice of appeal.
Appellant raises the following questions for this Court’s consideration:
1. Was evidence sufficient to prove Massey was incapable of
safely driving?
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2. Was the verdict against the weight of the evidence where the
officer made no observation of impaired driving and likewise
failed to establish impairment?
Brief for Appellant, at 1.
Initially, we review whether Appellant has waived his claims by failing
to comply with Pa.R.A.P. 1925(b). It is axiomatic that “in order to preserve
their claims for appellate review, appellants must comply whenever the trial
court orders them to file a Statement of Matters Complained of on Appeal
pursuant to Pa.R.A.P. 1925. Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.” Commonwealth v. Castillo, 888 A.2d
775, 780 (Pa. 2005) (citation and brackets omitted).
Here, the certified record and corresponding docket sheet entries
show that the trial court filed on July 9, 2021, a Rule 1925 order directing
Appellant to file a concise statement of matters complained of on appeal, as
follows:
AND NOW, this 9th day of JULY, 2021, the defendant shall
file of record and serve on this judge within twenty-one (21) days
of today’s date, a concise statement of errors complained of on
appeal. Any issue not properly included in the concise statement
timely filed and served pursuant to Rule 1925(b) shall be deemed
waived.
Trial Court Pa.R.A.P. 1925 Order, 7/9/21. The order listed defense/appellate
counsel as an intended recipient, and the docket sheet entry indicates the
court’s order was served upon defense counsel via eService.
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There is no dispute that Appellant failed to serve a counseled Rule
1925(b) statement on the trial court as directed.2 Nevertheless, our review
of the trial court’s Rule 1925 order reveals that it failed to conform with the
notice requirements of Rule 1925(b)(3)(iii), which states in relevant part that
an order “shall specify . . . both the place the appellant can serve the
Statement in person and the address to which the appellant can mail the
Statement.” Pa.R.A.P. 1925(b)(3)(iii).3 The Note to Rule 1925 explains that
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2 On September 1, 2021, 54 days after entry of its Rule 1925(b) order, the
trial court filed an order deeming Appellant’s appellate issues waived for his
failure to file a court-ordered Rule 1925(b) concise statement.
On December 6, 2021, Defense/Appellate counsel filed with the trial court a
Rule 1925(b) concise statement acknowledging that counsel’s office had
received service of the court’s July 9, 2021 order but explaining that an
intraoffice “complete breakdown in communication” prevented counsel from
learning of such service until December. Counsel thus sought the trial court’s
acceptance of the belated concise statement. By its order filed December 13,
2021, the trial court denied Appellant’s counseled request.
3 Rule 1925(b) was amended effective October 1, 2019, to provide:
(3) Contents of order. The judge's order directing the filing and
service of a Statement shall specify:
(i) the number of days after the date of entry of the judge's order
within which the appellant must file and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge pursuant to
paragraph (b)(1) and both the place the appellant can serve the
Statement in person and the address to which the appellant can mail
the Statement. In addition, the judge may provide an email,
(Footnote Continued Next Page)
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“Subparagraph (b)(3) . . . specifies what the judge must advise appellants
when ordering a Statement.” The trial court’s Rule 1925 order contains
neither of these required statements.
Our appellate courts have recognized that an appellant’s noncompliance
with Rule 1925(b) only results in waiver when the trial court has complied with
notice requirements of Rule 1925(b). See, e.g., Berg v. Nationwide
Mutual Insurance Co., 6 A.3d 1002, 1011 (Pa. 2010) (plurality); Rahn v.
Consol. Rail Corp., 254 A.3d 738, 746-47 (Pa. Super. 2021). “[I]n
determining whether an appellant has waived his issues on appeal based on
non-compliance with Pa.R.A.P. 1925, it is the trial court’s order that triggers
an appellant’s obligation . . . therefore, we look first to the language of that
order.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88
A.3d 222, 225 (Pa. Super. 2014) (quoting In re Estate of Boyle, 77 A.3d
674, 676 (Pa. Super. 2013)). See also Berg, 6 A.3d at 1007-08; Rahn, 254
A.3d 745-746.
This Court’s decision in Rahn is instructive. In Rahn, we held that the
appellant's failure to serve a Rule 1925(b) statement on the trial court did not
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facsimile, or other alternative means for the appellant to serve the
Statement on the judge; and
(iv) that any issue not properly included in the Statement timely filed
and served pursuant to subdivision (b) shall be deemed waived.
Pa.R.A.P. 1925(b)(3) (emphasis added).
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result in waiver because the trial court's Rule 1925(b) order omitted an
address where the appellant could serve a copy of his statement on the trial
court judge, information required by Rule 1925(b)(3)(iii). Rahn, 254 A.3d at
746-47. See also, Commonwealth v. Alvin, 1526 EDA 2021, 2022 WL
3149470 at *3-4 (Pa. Super. filed August 8, 2022) (unpublished
memorandum) (holding waiver did not apply to defendant/appellant because
trial court's 1925(b) order failed to inform where concise statement must be
filed and provided no address at which appellant could serve the trial court
judge with a copy of the statement);4, 5 Reverse Mortgage Funding, LLC v.
Russo, 919 EDA 2020, 2020 WL 5890760 at *2-3 (Pa. Super. filed Oct. 5,
2020) (unpublished memorandum).
Herein, because the trial court’s order did not conform with Rule
1925(b)(3)(iii)’s requirements, we conclude that Appellant’s failure to file a
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4See generally Pa.R.A.P. 126(b) (noting that unpublished memorandum
decisions of the Superior Court filed after May 1, 2019, may be cited for their
persuasive value).
5 In Alvin, the PCRA court’s Rule 1925(b) order in question contained virtually
identical language to the order at issue herein. Specifically, the order in Alvin
stated:
[I]t is hereby ordered that, within twenty-one (21) days of the
date of this order, [Appellant] shall file of record and shall
concurrently serve the undersigned with a concise statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b)(1).
Any issue not properly included in such a statement timely filed
and served pursuant to Rule 1925(b)(1) shall be deemed waived.
Id., No. 1526 EDA 2021, 2022 WL 3149470, at *4.
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timely Rule 1925(b) concise statement may not serve as grounds upon which
to find Rule 1925 waiver.
Next, we address Appellant’s challenge to the sufficiency of the evidence
offered to prove DUI: Controlled Substances at Vehicle Code Section
3802(d)(2).
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all of 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 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 weight of the evidence produced, is
free to believe all, part or none of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en
banc) (citation omitted).
Although the finder of fact may make reasonable inferences from
the testimony presented, the “inferences must flow from facts and
circumstances proven in the record, and must be of such volume and quality
as to overcome the presumption of innocence and satisfy the jury of an
accused's guilt beyond a reasonable doubt.” Commonwealth v. Scott, 597
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A.2d 1220, 1221 (Pa. Super. 1991). “The trier of fact cannot base a conviction
on conjecture and speculation and a verdict which is premised on suspicion
will fail even under the limited scrutiny of appellate review.” Id. Finally,
“[b]ecause evidentiary sufficiency is a question of law, our standard of review
is de novo and our scope of review is plenary.” Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
Section 3802(d)(2) prohibits a person from operating a vehicle when:
“[t]he 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(d)(2). Therefore, to convict a defendant under this
section, the Commonwealth must establish three elements: 1) that the
defendant drove; 2) while under the influence of a controlled substance; and
3) to a degree that impairs the defendant's ability to drive safely.
Commonwealth v. Griffith, 32 .3d 1231, 1239 (Pa. 2011).
Evidence of consumption of a drug, standing alone, is insufficient to
prove impairment. Commonwealth. v. Etchison, 916 A.2d 1169, 1172 (Pa.
Super. 2007) (reversing a DUI-controlled substance conviction when the only
evidence of impairment was the presence of metabolites of cannabinoids in
the defendant's blood and when an expert witness testified that the presence
was not an indication of current impairment). Instead, impairment evidence
should be drawn from the factual circumstances. Commonwealth.
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v. DiPanfilo, 993 A.2d 1262, 1267 n. 5 (Pa. Super. 2010) (describing a
hypothetical scenario in which an officer pulls over a suspect for driving
erratically and encounters a cloud of marijuana smoke and typical signs of
heavy marijuana use). Cf Commonwealth v. Mobley, 14 A.3d 887, 890
(Pa. Super. 2011) (“Evidence of erratic driving is not a necessary precursor to
a finding of guilt under [Section 3802(a)(1)]. The Commonwealth may prove
that a person is incapable of safe driving through the failure of a field sobriety
test.”).
Appellant contends he demonstrated unimpaired driving prior to the
traffic stop and appropriately managed other tasks such as pulling over safely
at the beginning of an off-ramp, providing his driving information, speaking,
and stepping out of the vehicle. Under these facts, he argues, a Section
3802(d)(2) charge could not properly lie against him.
The Commonwealth refutes this argument, first countering that troopers
observed Appellant traveling at 81 mph for approximately five to eight
minutes before he was stopped. This protracted high rate of speed, the
Commonwealth suggests, supplied evidence of unsafe driving and impaired
judgment rendering him unable to safely operate his truck.
In any event, the Commonwealth maintains, Appellant’s physical
appearance during the traffic stop coupled with his failure of field sobriety
tests, viewed either alone or in conjunction with the troopers’ observation of
his speeding, sufficed to support the conviction under Section 3802(d)(2).
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Upon the initial police-citizen encounter, Appellant exhibited red, glossy
eyes and a dry mouth, physical signs indicative of marijuana use. Field
sobriety tests revealed Appellant’s visual, coordination, and balance problems,
as well as tremors, all of which are known to accompany marijuana
intoxication. Further evidence contradicting Appellant’s denial of marijuana
use included the strong odor of marijuana on his person, his red conjunctiva
(redness at the base of his eyes), and a green tongue, which, the troopers
testified, commonly occurs with recent marijuana smoking.
Viewed in a light most favorable to the Commonwealth as verdict
winner, the evidence established Appellant’s recent use of marijuana, his
impaired vision, balance, and coordination as exhibited in his field sobriety
test performances, and his compromised judgment as reflected in his driving
81 mph in a 65 mph zone for five to eight minutes at nearly 1:00 a.m.
Collectively, such evidence permitted a reasonable finder of fact to conclude
that Appellant drove his vehicle at a time when his marijuana use impaired
his ability to drive safely. See Mobley, supra; Commonwealth v. Cruz,
258 A.3d 523, unpublished decision at *3 (Pa. Super. filed June 14, 2021)
(holding mere fact Cruz drove 20 mph over the speed limit was circumstantial
evidence that he was incapable of safely operating his vehicle because, at that
speed, he was not safely operating it; officer’s testimony that Cruz was an
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unsafe driver due to cannabis was thus reflected in the facts). 6 Accordingly,
guided by controlling authority discussed supra, we discern no merit to
Appellant’s sufficiency of the evidence challenge.
In Appellant’s second issue, he purports to challenge the weight of the
evidence offered against him.7 This Court's standard of review of a weight of
the evidence claim is limited:
A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor
of acquittal that a guilty verdict shocks one's sense of justice. On
review, an appellate court does not substitute its judgment for the
finder of fact and consider the underlying question of whether the
verdict is against the weight of the evidence, but, rather,
determines only whether the trial court abused its discretion in
making its determination.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (citations
omitted). The fact finder is free to believe all, some, or none of the evidence
presented. Commonwealth v. Jacoby, 170 A.3d 1065, 1078 (Pa. 2017)
(citations omitted).
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6 See Pa.R.A.P. 126(b) (unpublished non-precedential decisions of the
Superior Court filed after May 1, 2019, may be cited for
their persuasive value).
7Initially, we note Appellant properly preserved his weight claim in his post-
sentence motion pursuant to Pa.R.Crim.P. 607 (A)(1)-(3) (a challenge to the
weight of the evidence must be raised before the trial court either before
sentencing or in a post-sentence motion).
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This Court will not find an abuse of discretion
based on a mere error of judgment, but rather ... where the [trial]
court has reached a conclusion which overrides or misapplies the
law, or where the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias or ill-will. Importantly,
[this C]ourt should not find that a trial court abused its discretion
merely because [we] disagree[ ] with the trial court's conclusion.
Indeed, “when reviewing the trial court's exercise of discretion, it
is improper for [this C]ourt to ‘step[ ] into the shoes’ of the trial
judge and review the evidence de novo.” In other words, [this
C]ourt “may not disturb a trial court's discretionary ruling by
substituting its own judgment for that of the trial court.”
Commonwealth v. Gill, 206 A.3d 459, 467 (Pa. 2019) (citations and some
quotation marks omitted).
Initially, our review of Appellant’s argument shows that he presents only
a bare assertion that “Troopers Kulsa and Highhouse’s opinion that [he] was
incapable of safe driving was based on mere subjective factors that do not
scientifically correlate to levels of impairment.” Brief of Appellant at 26.
Setting aside the observation that the argument appears directed more to the
sufficiency of the evidence than to the weight of the evidence, we find the
claim is waived pursuant to Pa.R.A.P. 2119(a) because Appellant neither
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develops this contention in any meaningful way nor supports it with relevant
authority.8, 9
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2022
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8 Pa.R.A.P. 2119 requires that:
The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part—
in distinctive type or in type distinctively displayed—the particular
point treated therein, followed by such discussion and citation
of authorities as are deemed pertinent.
Pa.R.A.P. 2119(a).
Claims may be waived under Rule 2119(a) for failure to cite to relevant
case law or to otherwise develop issues in a meaningful fashion capable of
review. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009)
(indicating that “where an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived” (citations
omitted)).
9 Even if we were to address Appellant’s weight of the evidence claim on its
merits, we would acknowledge that the trial court was free to credit the
testimonies of the state troopers with respect to Appellant’s manner of driving,
physical presentation, and performances in both the SFST and the marijuana-
specific ARIDE tests. Gill, supra. We would find, therefore, that Appellant’s
weight claim is devoid of merit.
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