Com. v. Wilson, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANIEL ROBERT WILSON :
:
Appellant : No. 2101 MDA 2019
Appeal from the Judgment of Sentence Entered July 10, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001224-2018
BEFORE: SHOGAN, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 13, 2020
Daniel Robert Wilson (Appellant) appeals from the judgment of sentence
imposed after the trial court found him guilty of driving under the influence
(DUI) of controlled substances (metabolite) and DUI – impaired ability
(controlled substances).1 We affirm.
On the night of November 15, 2017, Tamara Funk (Funk) was working
at Catch-Up Logistics, a storage and truck-loading facility. Funk witnessed
Appellant operating his truck and struggling to park it at one of the facility’s
loading docks. Funk observed Appellant make 10 to 15 attempts to park at
the dock, when it generally takes a driver five or less attempts to park. After
Appellant got out of the truck, Funk observed Appellant swaying and
struggling to maintain his balance. Funk then called the Chambersburg Police
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1 75 Pa.C.S.A. §§ 3802(d)(1)(iii), (2).
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Department to report her concern that Appellant may have been driving under
the influence.
Officer Patrick Hinds (Officer Hinds) from the Chambersburg Police
Department responded to the call. According to Officer Hinds, Appellant’s
truck was still running when he arrived. When Officer Hinds knocked on the
driver’s side door of Appellant’s truck, Appellant opened the door and the
officer smelled an overpowering odor of marijuana coming from the truck.
Officer Hinds then asked Appellant if he was the driver of the truck, to which
Appellant responded in the affirmative. Officer Hinds next asked Appellant if
he had smoked marijuana in the truck, and Appellant stated that he did.
Officer Hinds asked Appellant to exit the truck and perform field sobriety
tests. Appellant failed the walk-and-turn test, and consequently, Officer Hinds
determined that Appellant was impaired by a controlled substance and was
incapable of safely operating a motor vehicle. Officer Hinds placed Appellant
under arrest and transported him to Chambersburg Hospital for blood testing.
The toxicology report, to which both parties stipulated, revealed that
Appellant’s blood contained the active ingredient in marijuana, THC, and two
marijuana metabolites.
The Commonwealth charged Appellant with: Count 1 – DUI – controlled
substance, Count 2 – DUI – controlled substance (metabolite), and Count 3 –
DUI – impaired ability (controlled substances). On April 4, 2019, the trial
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court held bench trial and found Appellant guilty as to Counts 2 and 3, and
not guilty as to Count 1.
On July 10, 2019, the trial court sentenced Appellant to 72 hours to 6
months of incarceration. On July 19, 2019, Appellant filed post-sentence
motions in which he argued, inter alia, that the trial court’s verdict for both of
his convictions was against the weight of the evidence. On December 13,
2019, the court entered an order denying Appellant’s post-sentence motions.
This appeal followed.2
Appellant states his four evidentiary issues as follows:
1. An individual may not drive, operate or be in actual physical
control of the movement of a vehicle while there is in the
individual’s blood any amount of a metabolite of a substance. . . .
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2 Pursuant to Pennsylvania Rule of Criminal Procedure 720(B)(3)(a), the trial
court “shall decide the post-sentence motion, including any supplemental
motion, within 120 days of the filing of the motion. If the judge fails to decide
the motion within 120 days, or to grant an extension as provided in paragraph
(B)(3)(b), the motion shall be deemed denied by operation of law.”
Pa.R.Crim.P. 720(B)(3)(a). Here, the 120-day period for a decision on
Appellant’s post-sentence motions expired on November 18, 2019. The clerk
of courts, however, failed to enter an order deeming the motions denied on
that date. See Pa.R.Crim.P. 720(B)(3)(c) (“When a post-sentence motion is
denied by operation of law, the clerk of courts shall forthwith enter an order
on behalf of the court, and, . . . forthwith shall serve a copy of the order on
the attorney for the Commonwealth, the defendant’s attorney, or the
defendant if unrepresented, that the post-sentence motion is deemed
denied.”). Instead, the trial court ruled on the motion on December 13, 2019,
outside the 120-day period, and Appellant appealed within 30 days of that
order. Ordinarily, the appeal would be untimely, however, this Court has held
that a breakdown of the courts occurs when the trial court clerk fails to enter
an order deeming post-sentence motions denied by operation of law pursuant
to Rule 720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d 493,
498-99 (Pa. Super. 2007). Accordingly, we consider Appellant’s substantive
issues.
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Here, no evidence was presented at trial that [Appellant] had
smoked any marijuana prior to driving. Does sufficient evidence
exist to find [Appellant] guilty when no evidence exists or was
presented at trial that [Appellant] had smoke marijuana?
2. The verdict is against the weight of the evidence where it
“shocks one’s sense of justice.” Here, [Appellant] was charged
and found guilty of DUI Controlled Substance – Metabolite.
However, no evidence was presented at trial that [Appellant] had
smoked any marijuana prior to driving. Does a guilty verdict
shock the conscience when a person is charged with DUI
substance metabolite and no evidence was presented that
[Appellant] smoked marijuana prior to driving?
3. An individual may not drive, operate or be in actual physical
control of the movement of a vehicle while under the influence of
a drug or combination of drugs which renders him unable to safely
operate his vehicle. Here, no evidence was presented at trial that
[Appellant] had smoked any marijuana prior to driving. Does
sufficient evidence exist to find [Appellant] guilty when no
evidence exists or was presented at trial that [Appellant] had
smoke marijuana?
4. The verdict is against the weight of the evidence where it
“shocks one’s sense of justice.” Here, [Appellant] was charged
and found guilty of driving while under the influence of a drug or
combination of drugs to a degree which impairs his ability to safely
operate his vehicle. However, no evidence was presented at trial
that [Appellant] had smoked any marijuana prior to driving. Does
a guilty verdict shock the conscience when a person is charged
with driving under the influence of a drug or a combination of
drugs and no evidence was presented that [Appellant] smoked
marijuana prior to driving?
Appellant’s Brief at 1-2.
Appellant’s first and third issues challenge the sufficiency of the
evidence of his DUI – controlled substance (metabolite) and DUI – impaired
ability (controlled substances) convictions. As the arguments for both of these
issues are nearly identical, we address them together. Appellant argues that
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the Commonwealth failed to present evidence that Appellant was under the
influence of a controlled substance while he was in physical control of his truck.
In reviewing a challenge to the sufficiency of the evidence, we
recognize:
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal quotations and citations omitted). Importantly, “the [fact-finder],
which passes upon the weight and credibility of each witness’s testimony, is
free to believe all, part, or none of the evidence.” Commonwealth v.
Ramtahal, 33 A.3d 602, 607 (Pa. 2011).
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Appellant was convicted under Section 3802(d) of the Pennsylvania
Vehicle Code, which defines DUI offenses in the context of controlled
substances. Section 3802(d) 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:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined in the act of
April 14, 1972 (P.L. 233, No. 64),1 known as The Controlled
Substance, Drug, Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance, as
defined in The Controlled Substance, Drug, Device and
Cosmetic Act, which has not been medically prescribed for
the individual; or
(iii) metabolite of a substance under subparagraph (i) or (ii).
(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(d). Under the Pennsylvania Controlled Substance, Drug,
Device, and Cosmetic Act, marijuana is a Schedule I controlled substance. 35
P.S. § 780-104(1)(iv).
Regarding operation or physical control of a vehicle under Section 3802,
this Court has explained:
The term “operate” requires evidence of actual physical control
of the vehicle to be determined based upon the totality of the
circumstances. Our precedent indicates that a combination of the
following factors is required in determining whether a person had
“actual physical control” of an automobile: the motor running, the
location of the vehicle, and additional evidence showing that the
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defendant had driven the vehicle. The Commonwealth can
establish that a defendant had “actual physical control” of a
vehicle through wholly circumstantial evidence. Furthermore, a
police officer may utilize both his experience and personal
observations to render an opinion as to whether a person is
intoxicated.
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (citations
omitted).
In this case, the evidence supports the trial court’s finding that Appellant
was under the influence of a controlled substance (marijuana), and had
metabolites of marijuana and THC in his blood. Notably, the parties stipulated
to the admission of the toxicology report, which indicated that Appellant’s
blood contained the active ingredient in marijuana, THC, and two metabolites.
See N.T., 4/4/19, at 3.
At trial, Funk testified that she witnessed Appellant operating his truck
and struggling to successfully park the truck. Id. at 20-22. Funk testified
that she observed Appellant make 10 to 15 attempts to park at the dock, when
it typically takes a truck driver no more than five attempts to park. Id. at 21.
Funk stated that she found this number of attempts to be “out of the ordinary”
and that Appellant had to exit the truck three times in order to successfully
park it. Id. Funk reported that after Appellant got out of the truck, she
observed him struggling to maintain his balance, swaying from side to side,
and using a wall for assistance while walking. Id. at 25, 28. For these
reasons, Funk contacted the police. Id. at 27.
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Officer Hinds testified that when he got to the truck-loading facility,
Appellant’s truck was still running. Id. at 46. Officer Hinds stated that he
knocked on the driver’s side door of Appellant’s truck, Appellant opened the
door, and the officer smelled a strong odor of marijuana coming from the
truck. Id. at 46-47. Officer Hinds testified that he asked Appellant if he was
the driver of the truck, and Appellant answered “yes.” Id. at 47. Officer Hinds
asked Appellant if he had “smoked weed” in the truck, and Appellant once
again responded “yes.” Id.
Officer Hinds testified that he asked Appellant to exit the truck and
perform field sobriety tests. Id. at 48. Based on the test results, Officer Hinds
concluded Appellant was “under the influence of a controlled substance which
rendered him incapable of safely operating the motor vehicle.” Id. at 49.
Officer Hinds placed Appellant under arrest under suspicion of DUI. Id. at 50.
Based on our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth as the verdict winner, the evidence was
sufficient for the trial court to conclude that Appellant was in physical control
of the truck while under the influence of marijuana. In particular, Funk’s
testimony that she witnessed Appellant fail numerous times to successfully
park the truck, and had difficulty standing and walking immediately thereafter,
support the court’s determination that Appellant operated the truck under the
influence of a controlled substance. See 75 Pa.C.S.A. § 3802(d)(2).
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With regard to Appellant’s conviction under 75 Pa.C.S.A. §
3802(d)(1)(iii), Appellant’s blood content was substantiated by chemical
testing that night. Accordingly, Appellant’s challenge to the sufficiency of the
evidence as to both DUI convictions lacks merit.
Appellant’s second and fourth issues challenge the weight of the
evidence of his DUI – controlled substance (metabolite) and DUI – impaired
ability (controlled substances) convictions. Because the arguments related to
each of these issues mirror Appellant’s sufficiency arguments, neither issue
warrants relief.
The differences between a challenge to the weight and a challenge to
the sufficiency of the evidence, as our Supreme Court explained in
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000), are as
follows:
The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, Tibbs v. Florida,
457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604
(Pa. 1983), whereas a claim challenging the weight of the
evidence if granted would permit a second trial. Id.
A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993).
Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. Commonwealth v. Santana, 333 A.2d 876
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(Pa. 1975). When reviewing a sufficiency claim the court is
required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Commonwealth v.
Chambers, 599 A.2d 630 (Pa. 1991).
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Commonwealth v.
Whiteman, 485 A.2d 459 (Pa. Super. 1984). Thus, the trial court
is under no obligation to view the evidence in the light most
favorable to the verdict winner. Tibbs, 457 U.S. at 38 n.11.
Widmer, 744 A.2d at 751-52 (citations modified).
The Supreme Court has detailed our standard of review for a claim that
a verdict was against the weight of the evidence as follows:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Widmer, [] 744 A.2d 745,
751-52 ([Pa.] 2000); [Commonwealth v. Brown, 648 A.2d
1177, 1189 (Pa. 1994)]. A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.
Widmer, 744 A.2d at 752. Rather, “the role of the trial judge is
to determine that ‘notwithstanding all the facts, certain facts are
so clearly of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.’” [Id.] (citation
omitted). It has often been stated that “a new trial should be
awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is
imperative so that right may be given another opportunity to
prevail.” Brown, 648 A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Brown, 648 A.2d at 1189. Because the trial judge has had
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the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is
against the weight of the evidence. Commonwealth v.
Farquharson, 354 A.2d 545 (Pa. 1976). One of the least
assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not
against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Widmer, 744 A.2d at 753 (emphasis added).
Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
As noted above, Appellant’s weight challenges echo his challenges to
the sufficiency of the evidence. Indeed, both weight arguments are essentially
“cut-and-pasted” renditions of his sufficiency arguments. See Appellant’s
Brief at 12-27. Consequently, Appellant has failed to properly present his
weight arguments, and thus, has waived these claims. See Commonwealth
v. Perez, 93 A.3d 829, 842 (Pa. 2014) (holding that appellant’s “boilerplate”
and “undeveloped” challenge to the weight of evidence was waived).
Accordingly, Appellant’s second and fourth issues lack merit.
Judgment of sentence affirmed.
Judge Shogan joins the memorandum.
Judge Stabile concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2020
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