J-S60024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

NATHEN KERSTETTER

                         Appellant                    No. 2114 MDA 2013


     Appeal from the Judgment of Sentence entered November 4, 2014
              In the Court of Common Pleas of Centre County
               Criminal Division at No: CP-14-CR-0829-2012


BEFORE: OTT, STABILE, and JENKINS, JJ.

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 12, 2015

      Appellant, Nathen Kerstetter, appeals from the November 4, 2014

judgment of sentence imposing five years of intermediate punishment for

driving under the influence (75 Pa.C.S.A. § 3802(d)(1)(i)) and consecutive

one year sentences for possession of a controlled substance (35 Pa.C.S.A.

§ 780-113(a)(16)) and possession of drug paraphernalia (35 Pa.C.S.A.

§ 780-113(a)(32)). We affirm.

      On October 25, 2011 at approximately 12:10 p.m., William Bain

(“Bain”),   an   employee   of   Remodeler’s   Workshop   in   Centre   County,

Pennsylvania observed Appellant sitting in his pickup truck in the store’s

parking lot. N.T. Trial, 9/3/13, at 3-4. Appellant’s vehicle was not parked

within a marked parking spot.        Id.   Appellant was holding his head and

appeared to be in distress, so Bain approached Appellant’s vehicle and asked
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Appellant if he needed help.       Id. at 4.     Appellant did not respond

immediately, but eventually stated that he needed help.           Id. at 4-5.

Appellant opened the door to his truck and vomited. Id. at 5. Bain testified

that Appellant’s vehicle had been in the parking lot for only a short time, as

Bain heard Appellant’s vehicle arrive thirty to forty-five seconds after

another vehicle departed.   Id. at 4, 8.   Bain was able to hear Appellant’s

vehicle arrive because of loud music emanating from the vehicle. Id. at 7-8.

      Trooper Mathias G. Schmotzer (“Schmotzer”), the first police officer to

arrive at the scene, testified that Appellant was on a gurney when

Schmotzer arrived, in preparation for transport by ambulance to a hospital.

Id. at 11.   Schmotzer observed Appellant crying, vomiting and expressing

fear of imminent death.     Id.   Schmotzer noticed a “moderate” odor of

alcohol on Appellant. Id. at 13. Appellant’s speech was slurred and his eyes

were bloodshot. Id. at 14. Appellant told Schmotzer he was sick because

he drank some beer and smoked some “Mr. Nice Guy:”

           Q.     When you were speaking to [Appellant], did he tell
      you – I believe you already testified, did he tell you specifically
      what he had taken?

             A.   I can’t remember. Without looking at my report, I
      can’t remember. He said he either took Mr. Nice Guy or bath
      salts and had drank beer. He said he got sick and pulled into
      the parking lot. And I asked, “Well, what are you sick from?”
      and that’s when he said that he drank some beer and either took
      or smoked Mr. Nice Guy or bath salts or something like that,
      something of that nature. I’m not sure the wording of it,
      though.

Id. at 15 (emphasis added).


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      Schmotzer testified that Appellant’s truck keys were in the truck’s

ignition, and that the truck was not parked within a marked parking spot.

Id. at 18. Rather, it was parked perpendicular to the marked parking stalls.

Id. at 19. The engine was not running. Id. at 24. A search of the vehicle

revealed several open and closed packets of synthetic marijuana. Id. at 19.

Police also recovered a smoking pipe. Id. at 28-29. The parties stipulated

that residue from the smoking pipe and packages tested positive for AM

2201, commonly known as synthetic marijuana or bath salts, which is an

analogue of JWH-019, a schedule 1 controlled substance.        Id. at 33-34.

Appellant consented to a blood draw. Id. at 17. His blood tested positive

for AM-2201. Id. at 18.

      Appellant testified in his own defense.   Appellant claimed he packed

the pipe and smoked it after he pulled into the Remodeler’s Workshop

parking lot and turned his keys to the accessory position.        Id. at 36.

Appellant testified he had an immediate adverse reaction to the substance.

Id. at 36-37. Appellant testified he became very ill within thirty seconds of

smoking the Mr. Nice Guy.     Id. at 37.   He also testified that it took him

twenty seconds to pack the substance into the smoking pipe. Id. Appellant

claimed he never smoked synthetic marijuana before and was unaware of its

effects.   Id. at 38.   Appellant purchased the synthetic marijuana at an

establishment called Dragon Chaser in State College, Pennsylvania. Id. at

15.


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       At the conclusion of the September 3, 2013 nonjury trial, the court

found Appellant guilty of the aforementioned offenses. In this timely appeal,

he argues the Commonwealth produced insufficient evidence to support his

DUI conviction.1 Specifically, Appellant argues the record does not contain

sufficient evidence that he was in actual physical control of his vehicle after

he became intoxicated.2           He argues that the record does not contain

sufficient evidence to support an inference that he was intoxicated before he

stopped his car in the Remodeler’s Workshop parking lot.

       Our standard of review is well-settled:

____________________________________________


1
   Appellant has abandoned his challenge to the trial court’s denial of his pre-
trial motion to suppress evidence. Appellant’s Brief at 18-19.
2
    Section 3802(d) provides as follows:

            § 3802.    Driving under influence of alcohol or
       controlled substance.

                                          [. . .]

             (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), known as The
              Controlled Substance, Drug, Device and Cosmetic Act;

75 Pa.C.S.A. § 3802(d)(1)(i).




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               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. 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. 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. Thompson, 93 A.3d 478, 489 (Pa. Super. 2014).

        In his brief, Appellant cites several cases delineating the circumstances

under which a defendant is, or is not, in actual physical control of a vehicle.

In Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010), for

example, this Court found sufficient evidence where the defendant was

asleep in the driver’s seat of a running vehicle and had a cold, unopened six

pack of beer in the car. Id. at 1246. In other words, those facts sufficiently

supported an inference that the defendant was in actual physical control of

the     vehicle.   Appellant   also   cites   Banner   v.   Commonwealth      of

Pennsylvania Dep’t of Transp., 737 A.2d 1203 (Pa. 1999), in which the

defendant was sleeping in a passenger seat of a car parked alongside a

road.     Id. at 1204.   The keys were in the ignition but the car was not

running.     Id.   Our Supreme Court held that the arresting officer lacked




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reasonable grounds to believe the defendant was in actual physical control of

the vehicle. Id. at 1207.3

       We believe these cases are largely inapposite here. Appellant does not

dispute that he drove his pickup truck into the Remodeler’s Workshop

parking lot. Rather, he claims he was sober when he drove into the parking

lot and ingested the synthetic marijuana afterward.        He also claims the

synthetic marijuana immediately made him ill. We must discern whether the

record supports the trial court’s finding that Appellant was intoxicated before

he parked his car in the Remodeler’s Workshop Parking lot. In this regard,

the trial court found:

             Appellant testified he did not consume the synthetic
       marijuana until after he had pulled into the parking lot of
       Remodeler’s Workshop.        This Court, however, did not find
       Appellant’s testimony to be credible.      Appellant testified he
       pulled into the parking lot, parked his vehicle, turned his keys to
       ‘accessory mode’, opened the package of synthetic marijuana,
       prepared the pipe, lit the pipe, took three hits of synthetic
       marijuana, and almost immediately thereafter became violently
____________________________________________


3
   As Banner involved a license suspension, the Supreme Court did not
apply the sufficiency of the evidence standard of review quoted in the main
text. The Banner Court did not analyze whether the record contained
sufficient evidence to establish beyond a reasonable doubt that the
defendant was in actual physical control of the vehicle. Rather, the Court
determined “whether the factual findings of the trial court are supported by
competent evidence and whether the trial court committed an error of law or
abuse of discretion.” Id. at 1205. Likewise, the Court analyzed whether the
arresting police officer had probable cause to conclude that the defendant
was in actual physical control of the vehicle. Id. at 1207. Given our
conclusions in the main text that Appellant actually drove the vehicle while
under the influence of synthetic marijuana, the distinctions between Banner
and the instant case do not affect our result.



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      ill. If this Court were to believe Appellant’s testimony, these
      actions all would have had to have taken place in the
      approximately 45-60 seconds during which [Bain] observed
      Appellant in his vehicle, as [Bain] noticed Appellant’s vehicle
      immediately after it parked across the spaces in the lot and
      testified he watched Appellant for 45-60 seconds before deciding
      to offer assistance to Appellant.      This Court did not find
      Appellant’s testimony credible and therefore relied on the
      credible testimony of both [Bain] and Trooper Schmotzer to
      conclude beyond a reasonable doubt that Appellant pulled into
      the parking lot of Remodeler’s Workshop because he became ill
      from smoking the synthetic marijuana prior to or while driving.

Trial Court Opinion, 1/8/14, at 4.

      In summary, the trial court found Schmotzer and Bain credible and

determined that their testimony provided sufficient evidence to convict

Appellant. The trial court found Appellant’s version of events not credible.

Drawing inferences in favor of the Commonwealth, as we must, we conclude

that the record contains sufficient circumstantial evidence that Appellant was

intoxicated before he parked at the Remodeler’s Workshop. In light of this

conclusion, we need not analyze whether Appellant remained in actual

physical control of his vehicle after he parked it and turned the key to the

accessory position.

      We further reject Appellant’s argument that the doctrine of mutually

exclusive inferences applies here because the record equally supports two

inferences, one    being that he     was intoxicated prior    to   arriving at

Remodeler’s Workshop and the other that he became intoxicated afterward.

See Commonwealth v. Crompton, 682 A.2d 286, 289 (Pa. 1996)

(“[W]hen a party on whom the burden of proof rests, in either a civil or

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criminal case, offers evidence consistent with two opposing propositions, he

proves neither.”).       In Crompton, the Commonwealth produced a single

police officer to testify about the execution of a search warrant. Id. at 288-

89.   On cross-examination, the officer rendered an account of his actions

that directly contradicted his direct testimony.      Id. at 289.    Viewed in

isolation, either account would have triggered an exception to the knock and

announce rule.     Id.    Viewed as a whole, however, the officer’s testimony

gave rise to two mutually exclusive possibilities. Id. Since the officer was

the Commonwealth’s sole witness, his testimony was insufficient to prove

either. Id.

      Crompton is inapposite. Here, unlike Crompton, the Commonwealth

produced several witnesses and physical evidence supporting its case. The

trial court found Appellant’s testimony – that he loaded the pipe, smoked it,

and became dangerously intoxicated after he parked his truck – lacking in

credibility.   Since no evidence other than Appellant’s testimony supported

Appellant’s account of events, and since the Commonwealth offered

consistent evidence from several sources, the doctrine of mutually exclusive

inferences is inapplicable here.       In asking us to deem that evidence

insufficient on appeal, Appellant is asking us to draw an inference against

the Commonwealth.         Our standard of review expressly forbids that action,

and we therefore conclude that Appellant’s argument does not merit relief.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2015




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