J.   S33032/19

NON-PRECEDENTIAL DECISION               - SEE SUPERIOR COURT I.O.P.         65.37
COMMONWEALTH OF PENNSYLVANIA                 :    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

FRANK MAROTTO,                                         No. 2064 MDA 2018

                           Appellant


       Appeal from the Judgment of Sentence Entered September 4, 2018,
                in the Court of Common Pleas of Lancaster County
                 Criminal Division at No. CP-36-CR-0001886-2018


BEFORE:      LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED AUGUST 12, 2019

         Frank Marotto appeals from the September 4, 2018 judgment of

sentence entered in the Court of Common Pleas of Lancaster County following

his conviction in a bench trial of driving under the influence of a controlled

substance; driving while operating privileges suspended or revoked; operating

a    motor vehicle without required financial responsibility; and registration and

certificate of title required (2 counts).1       Appellant received an aggregate

sentence of time served (16 days) to 6 months' incarceration and was ordered

to pay $1,650 in fines. We affirm.

         The trial court set forth the following factual and procedural history:

               On January 26, 2018, at  approximately 6:00 p.m.,
               Officer Jeffrey Myers ("Myers") of the East Earl
               Township Police Department ("EETPD") observed a

1    75 Pa.C.S.A. §§ 3802(d)(2), 1543(a), 1786(f) and 1301(a), respectively.
J.   S33032/19

            slow -moving truck and trailer driving approximately
            30 miles per hour in a 45[-]mile[s-]per[-]hour zone.
            Although he was off -duty, Myers followed the vehicle
            and saw it cross over the fog line and drive onto the
            shoulder of the road. Myers observed a number of
            indicators that led him to believe the driver may be
            impaired, including drifting out of the lane of travel
            onto the shoulder, nearly hitting a bicyclist on the
            shoulder, failing to use a turn signal when turning,
            abruptly turning, almost hitting several mailboxes due
            to driving on the shoulder of the road, and frequently
            decreasing and then increasing the speed of the
            vehicle. There were no adverse weather conditions.
            Myers followed the vehicle for approximately ten
            minutes and did not lose sight of the vehicle.

            When   he observed the vehicle almost strike the
            bicyclist, Myers notified Officer Gary Sensenig
            ("Sensenig") of EETPD, who shortly thereafter
            initiated a traffic stop. Appellant was driving the
            vehicle, and he was charged with driving under the
            influence of a controlled substance ("DUI"), driving
            while operating privilege is suspended or revoked,
            operation of a motor vehicle without required financial
            responsibility, and two counts of registration and
            certificate of title required.

            On September 4, 2018, a bench     trial was held and the
            [trial] court found [a]ppellant guilty on all counts. The
            [trial] court then imposed a jail sentence of time
            served (16 days) to six months in Lancaster County
            Prison ("LCP"). On September 5, 2018, [a]ppellant
            filed a Motion for Judgment of Acquittal, alleging the
            verdict was against the weight of the evidence
            presented at trial.      The Commonwealth filed a
            response in opposition. The post[ -]sentence motion
            was denied on November 19, 2018.

            On December 18, 2018, [a]ppellant filed an appeal to
            the Superior Court. On January 8, 2019, [a]ppellant
            filed a Concise Statement of Errors Complained of on
            Appeal ("Statement"), alleging the lower court erred
            in: (1) allowing the admission of evidence concerning
            [a]ppellant's refusal to submit to a blood test; and


                                      -2
J.   S33032/19

             (2) finding there was sufficient evidence to prove
             [a]ppellant guilty.

             This opinion is written pursuant to Rule 1925(a) of the
             Pennsylvania Rules of Appellate Procedure.

Trial court opinion, 1/30/19 at 1-2 (citations omitted).

       Appellant raises the following issues for our review:

             I.    Did the trial court err in admitting the testimony
                   of Officer Sensenig concerning          [appellant's]
                   refusal to submit to a blood test?

             II.   Did the trial court err in finding [appellant]
                   guilty?

Appellant's brief at 8.

       Appellant   first claims    that the trial      court erred      in      admitting

Officer Sensenig's testimony that appellant refused to submit to            a   blood test

to show appellant's consciousness of guilt.    (Id. at 12.) Our standard of review
of questions concerning the admissibility of evidence      is as   follows:

             questions concerning the admissibility of evidence are
             within the sound discretion of the trial court and will
             only be reversed upon a showing that the court
             abused its discretion. An abuse of discretion occurs
             where "the law is overridden or misapplied, or the
             judgment exercised is manifestly unreasonable, or the
             result of partiality, prejudice, bias, or ill will, as shown
             by the evidence or the record." However, to the
             extent the question presents as "an issue involving a
             constitutional right, it is a question of law; thus, our
             standard of review is de novo, and our scope of
             review is plenary."

Commonwealth v. Adams, 104 A.3d 511, 517                     (Pa.    2014) (citations

omitted).



                                        -3
J.   S33032/19

        Our supreme court, affirming this court's decision in Commonwealth

v.    Bell,   concluded,      "the    'evidentiary        consequence'       provided       by

Section 1547(e) for refusing to submit to             a   warrantless blood test        - the
admission of that refusal at           a   subsequent trial for DUI             -    remains

constitutionally permissible post-Birchfield (v. North Dakota,                      U.S.     ,


136 S.Ct. 2160 (2016)1.1'2        Commonwealth v. Bell, 2019             WL 3209999 at

*11 (Pa. July 17, 2019), affirming Commonwealth v. Bell, 167 A.3d 744

(Pa.Super.    2017).      The     Bell court explained, "appellant agreed (by
undertaking to engage in      a   civil privilege such as operating      a   motor vehicle)

to accept an ultimatum pursuant to which he would either consent to                 a   search

or accept non -criminal consequences of         a   refusal to so consent." Bell, 2019

WL 3209999 at       *7 (citation, original quotation marks, and brackets omitted).

        Section 1547(e) states, in pertinent part, as follows:

              § 1547. Chemical testing to determine amount
              of alcohol or controlled substance


              (e)    Refusal admissible in evidence. --In any
                     summary proceeding or criminal proceeding in
                     which the defendant is charged with a violation
                     of section 3802 or any other violation of this title
                     arising out of the same action, the fact that the
                     defendant refused to submit to chemical testing

2 We note that our supreme court only addressed whether Section 1547(e)

violates the accused's Fourth Amendment right under the United States
Constitution, finding that the accused waived his claim as to whether
Section 1547(e) violates Article 1, Section 8 of the Pennsylvania Constitution
because he failed to preserve the issue in the trial court. Bell, 2019 WL
3209999 at *5.

                                           -4
J.   S33032/19

                          as required by subsection (a) may be introduced
                          in  evidence along with other testimony
                          concerning the circumstances of the refusal. No
                          presumptions shall arise from this evidence but
                          it may be considered along with other factors
                          concerning the charge.

75 Pa.C.S.A.        §   1547(e).

          Here, appellant, relying on the Supreme Court of the United States'

decision in     Birchfield, "believes that allowing                 a    refusal to be entered into

evidence in     a   criminal trial in order to show consciousness of guilt would result

in a     criminal penalty" in violation of his Fourth Amendment right against

unlawful search and seizure.             (Id. at 13-17; see also Birchfield (holding,
"motorists cannot be deemed to have consented to submit to                          a   blood test on

pain of committing         a   criminal offense.").) Appellant contends that states, such

as Pennsylvania,         "may not impose criminal penalties on the refusal to submit

to   a   warrantless blood test." (Appellant's brief at 14.) Appellant argues, "the

current caselaw [sic] should be overturned." (Id. at 14-16 (citation omitted).)

Our supreme court disagrees. See Bell, 2019 WL 3209999 at *1-11.

          Under our supreme court's               recent decision in Bell, the officer's

testimony that appellant refused to submit to                   a       blood draw was admissible.

See Bell, 2019 WL 3209999 at *11. Therefore, appellant's claim                             is   without

merit.

          Appellant next challenges the sufficiency of the evidence to convict him

of DUI.      (Appellant's brief at 18.)          Our standard and scope of review for                 a


sufficiency of the evidence claim          is   well settled.


                                                 -5
J.   S33032/19

              The standard we apply in reviewing the sufficiency of
              the evidence is whether viewing all 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 proof or 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 the evidence actually received must be
              considered. Finally, the trier of fact while passing
              upon the credibility of witnesses and the weight of the
              evidence produced, is free to believe all, part or none
              of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004).

        Section 3802 states, in pertinent part, 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:




                                       -6
J.   S33032/19

                       (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)(2).

         Here, appellant claims the evidence was insufficient to establish that he

was under the influence of         a   controlled substance to   a   degree that his ability

to safely drive or operate    a    vehicle was impaired. (Appellant's brief at 18-20.)

Appellant contends that "[t]he only evidence against [appellant] consists of

an observation of [appellant's] driving by an off -duty police officer."              (Id. at
19.)

        After careful review, we find that the Honorable Donald            R.   Totaro, in his

Rule 1925(a) opinion, ably and              comprehensively disposes of appellant's

sufficiency claim with appropriate reference to the record and without error of

law, and we adopt this opinion as our own.             Specifically, the record reveals

Officer Myers observed appellant driving erratically prior to being stopped;

Officer Sensenig, after initiating the traffic stop, observed that appellant's

speech and movement were slow with pinpointed pupils and glassy and

bloodshot eyes; appellant admitted he had taken Hydrocodone and was given

a    shot of Demerol earlier that same day; and appellant refused to submit to              a


blood test. (See trial court opinion, 1/30/19 at 9-13.)




                                              -7
J.   S33032/19

        In viewing all of the evidence admitted at trial in the light most favorable

to the Commonwealth, as verdict winner, there is sufficient evidence to enable

the trial court, as fact -finder, to conclude the Commonwealth met its burden

of proof of establishing beyond      a    reasonable doubt the elements to support   a


conviction    of driving      under the      influence.   Consequently,   appellant's

sufficiency claim   is   without merit.

       Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn,
Prothonotary

Date: 08/12/2019




                                            -8
                                                                                                              2 Opinion
                                                                                  Circulated 07/30/2019 05:2"3 PM




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FRANK MAROTTO

                                    PA R.A.P.1925 OPINION

BY TOT ARO, J.

        Presently before the Superior Court of Pennsylvania is an appeal filed by Frank Marotto

("Appellant") from the judgment of sentence imposed on September 4, 2018, as finalized by the

denial of his post-sentence motion on November 19, 2018. For the reasons stated herein, the

appeal should be denied.

                                           BACKGROUND

       On January 26, 2018, at approximately 6:00 p.m., Officer Jeffrey Myers ("Myers") of the

East Earl Township Police Department ("EETPD") observed a slow-moving truck and trailer

driving approximately 30 miles per hour in a 45 mile per hour zone. (Notes of Testimony at 4- 7)

("N.T."). Although he was off-duty, Myers followed the vehicle and saw it cross over the fog ·

line and drive onto the shoulder of the road. Id. at 7. Myers observed a number of indicators that

led him to believe the driver may be impaired, including drifting out of the lane of travel onto the

shoulder, nearly hitting a bicyclist on the shoulder, failing to use a turn signal when turning,

abruptly turning, almost hitting several mailboxes due to driving on the shoulder of the road, and

frequently decreasing and then increasing the speed of the vehicle. Id. at 8-10, 15. There were

no adverse weather conditions. Id. at 8. Myers followed the vehicle for approximately ten

minutes and did not lose sight of the vehicle. Id. at 11.
                                                                                                                2_0pinion




        When he observed the vehicle almost strike the bicyclist, Myers notified Officer Gary

Sensenig ("Sensenig") of EETPD, who shortly thereafter initiated a traffic stop. (N. T. at 10-12).

Appellant was driving the vehicle, and he was charged with driving under the influence of a

controlled substance ("DUI"), driving while operating privilege is suspended or revoked,

operation of a motor vehicle without required financial responsibility, and two counts of

registration and certificate of title required. 1 See Criminal Information.

        On September 4, 2018, a bench trial was held and the court found Appellant guilty on all

counts. (N.T. at 84). The court then imposed a jail sentence of time served (16 days) to six

months in Lancaster County Prison ("LCP"). Id. at 90-91. On September 5, 2018, Appellant

filed a Motion for Judgment of Acquittal, alleging the verdict was against the weight of the

evidence presented at trial. See Post-Sentence Motion. The Commonwealth filed a response in

opposition. See Commonwealth's Answer to Defendant's Post-Sentence Motion for Judgment of

Acquittal. The post sentence motion was denied on November 19, 2018. See Order, 11/19/2018.

        On December 18, 2018, Appellant filed an appeal to the Superior Court. See Notice of

Appeal. On January 8, 2019, Appellant filed a Concise Statement of Errors Complained of on

Appeal ("Statement"), alleging the lower court erred in: (1) allowing the admission of evidence

concerning Appellant's refusal to submit to a blood test; and (2) finding there was sufficient

evidence to prove Appellant guilty. See Statement.

        This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate

Procedure.



        1
            75 Pa. C.S.A. § 3802(d)(2), 75 Pa. C.S.A. § l 543(a), 75 Pa. C.S.A. § l 786(f), and 75 Pa. C.S.A.
§ 130l(a), respectively.

                                                       2
                                                                                                       2_0pinion




                                             DISCUSSION

        Officer Myers testified at trial that as part of his police training, he was taught to

recognize if someone is intoxicated or under the influence of controlled substances in both their

individual capacity and while operating a vehicle. (N.T. at 5). He has had many opportunities to

investigate individuals who he believed were impaired while behind the wheel of a car, and to

interact with individuals who were under the influence of alcohol or a controlled substance. Id.

Typical indicators of an intoxicated driver include weaving in and out of their lane, increasing or

decreasing their speed, and erratic movements. Id at 5-6. Furthermore, an intoxicated individual

will likely have slurred speech, long drawn out speech, bloodshot eyes, glassy eyes, pinpoint

pupils, and they may stagger. Id at 6.

       While he was driving to work in his personal vehicle just after 6:00 p.m. on January 26,

2018, Myers caught up to a truck towing a trailer. (N.T. at 6-7). Myers noted that while the

truck and trailer were crossing a bridge, the vehicle moved off onto the shoulder of the road and

drove in the shoulder across the entire bridge. Id at 7. The vehicle then slowed down

significantly to about 30 m.p.h. in a 45 m.p.h. speed zone. Id Myers stated it was getting dark

outside but there were no adverse weather conditions. Id. at 7-8.

       Myers followed the vehicle for ten minutes and noted a number of indicators that led him

to believe the driver was impaired. (N.T. at 8). The truck and trailer drifted onto the shoulder of

the road before coming back into the lane of travel at least four or five times. Id. at 8-9, 16. One

occasion occurred on a straightaway when the vehicle came within inches of hitting a bicyclist

who was riding on the shoulder. Id. at 9. Although Myers could see the flashing red light on the

back of the bike from his location behind the truck and trailer, the vehicle failed to move over.


                                                   3
                                                                                                        2_0pinion




Id. The vehicle abruptly made a right tum and did not signal. Id. There were several points

where the vehicle was so close to the edge of the road that it almost hit mailboxes. Id. at 10.

Additionally, the vehicle was constantly slowing down and then speeding up. Id. at 15, 17.

        When he saw the vehicle swerve and almost hit the bicyclist, Myers called Officer

Sensenig to report his observations. (N.T. at 10). Eventually, Myers pulled off to the side of the

road and allowed Sensenig to pull in behind the truck and trailer. Id. at 10-11. Sensenig then

initiated a traffic stop of the suspect vehicle. Id. at 11. Myers went to the police station to start

his shift, and when he returned to the traffic stop Sensenig had Appellant in custody. Id. at 11-

12. When he later interacted with Appellant at the police station, Myers found that Appellant's

speech and movements were slow and his pupils were very pinpoint. Id. at 21. Based on his

training, experience, and observations, Myers opined that the driving was consistent with

someone who was under the influence, and Appellant was unable to control or operate his

vehicle in a safe manner. Id at 13, 19.

       Officer Sensenig testified that he has had training in field sobriety testing and extensive

training in detecting operators who are impaired based on their driving and physical appearance.

(N.T. at 22-23). Since becoming a police officer, Sensenig has made about 35 DUI arrests. Id. at

23. He has also come into contact with and observed people under the influence of controlled

substances as a police officer, and as a nationally registered paramedic for the past seven years

with extensive training in pharmacology. Id at 24, 51. Sensenig is currently working for the

Lancaster County Drug Task Force. Id at 22. According to Sensenig, manner of speech,

movement, balance, and glassy or bloodshot eyes are common signs exhibited by individuals

who are under the influence of controlled substances. Id. at 24-25. Furthermore, controlled


                                                  4
                                                                                                        2_0pinion




substances have an adverse effect on one's ability to operate a vehicle because they impair

judgment and the ability to multitask. Id. at 25.

        On January 26, 2018, Sensenig was working as a uniformed patrol officer in a marked

cruiser when he was notified by Myers of an erratic driver. (N.T. at 25-27). Sensenig intercepted

the suspect vehicle, initiated a traffic stop, and identified Appellant as the driver of the vehicle.

Id. at 27-28. Upon making contact with Appellant, Sensenig "immediately observed that his

pupils were abnormally pinpoint per the dark lighting conditions outside, and that his eyes were

glassy and bloodshot." Id. at 29. When he observed the pupils of the two passengers in the same

lighting conditions, "their pupils were double, if not triple, in size and were appropriately sized

for the lighting conditions." Id. at 30. According to Sensenig, Appellant's bloodshot eyes and

pinpoint pupils were classic indicators of someone who was impaired by narcotics or opiates. Id

       When asked, Appellant denied being under the influence of heroin, but he did admit he

had a prescription for Hydrocodone and he was recently given "a nasty shot of Demerol." (N.T.

at 30-31 ). Sensenig noted that Hydrocodone would constrict pupils. Id. at 57.

       Sensenig asked Appellant to step out of the vehicle to perform standardized field sobriety

testing on a level surface that was dry and free of any debris. (N. T. at 31-32). When he was

asked to perform the walk and turn test, Appellant stated he would not be able to perform the test

due to his swollen leg and a problem with his feet. Id. at 34. Sensenig next attempted to

administer the Romberg Balance Test, but the results were inconclusive because Appellant

appeared to understand the instructions for the tests but was just unable to complete them. Id

       Sensenig again examined Appellant's pupils and eyes, noting they were still extremely

pinpointed even when the flashlight was not being pointed in his eyes. (N.T. at 34). When he


                                                    5
                                                                                                           2_0pinion




moved his flashlight, Appellant's pupils did not change. Id at 34-35. Sensenig testified that

pupils normally are dilated at night to allow the maximum amount of light in, and they constrict

when they come into contact with light, but they would not constrict to a pinpoint. Id at 56.2

        Based on his training, experience, erratic driving observed by Officer Myers, and his own

observations of Appellant, Sensenig concluded that Appellant was under the influence of a

controlled substance that impaired his ability to drive. (N.T. at 37-38). As a result, Appellant

was placed under arrest for DUI and related traffic summaries. Id.3

        While at the police station, Sensenig asked Appellant to submit to a blood test to

determine whether he was under the influence of a narcotic or opioid. (N. T. at 39). Sensenig

read from a PennDOT DL-26 form, in which Appellant was told that ifhe refused to submit to

the blood test his operating privileges would be suspended for at least twelve months. Id at 43-

44. When asked ifhe would submit to the test, Appellant responded "I'm not taking your blood

test. I was just injected with all kinds of stuff." Id at 44-45.4

        In his testimony, Appellant stated he was not under the influence of alcohol or narcotics

on the evening in question and he did not feel impaired. (N.T. at 62). Rather, he was suffering


        2
          Sensenig testified that he first attempted the Horizontal Gaze Nystagmus (HGN) test. (N.T. at
32). However, trial counsel objected to the admission of the HGN test and the court sustained the
objection because there had been no Frye hearing to determine admissibility. Id. at 32-33.
        3
         When Sensenig asked Appellant for his license, registration, and proof of insurance, Appellant
was unable to provide any of those items. (N.T. at 29). Sensenig then ran Appellant's driving record
which showed that Appellant's license was suspended. Id. at 29, 38-39.
        4
          Without supporting case law, trial counsel objected to the introduction of Appellant's refusal
because it was pursuant to a warrantless search. (N.T. at 40-41). The Commonwealth responded by
arguing this was an administrative sanction which is admissible for consciousness of guilt. Id. at 40.
While recognizing the need for a warrant to draw blood and introduce the results thereof, the court
overruled the objection because there is no need for a warrant to read the DL-26 form or admit the
response thereto for purposes of consciousness of guilt. Id. at 40-43.

                                                    6
                                                                                                           2_0pinion




from physical ailments that made it difficult for him to walk and balance. Id. at 63-64. The

bright lights were hurting his eyes. Id. at 65. Further, Appellant stated he pulled his truck and

trailer over to the shoulder of the road several times so a tailgating car could pass. Id. at 59-60.

        Nevertheless, Appellant admitted he took Hydrocodone earlier that same day. (N.T. at

67). Moreover, Appellant was given a shot of Demerol at the hospital earlier that morning to

relax his muscles and relieve his pain. Id. at 72. While he did not think any medication given to

him at the hospital would have affected him in any way, Appellant agreed it was possible the

Hydrocodone would show up in his system because he had taken the dose within the past 24

hours. Id. at 73-74. He was concerned about submitting to the blood test because something

from the hospital visit could show up in his blood. Id. at 68. Additionally, Appellant

acknowledged he did not motion for the car behind him to pass. Id. at 71.5

        In rebuttal, Sensenig testified to previous interactions with Appellant and noted that

Appellant's appearance and behavior on the night of this incident differed from his appearance

and behavior during previous encounters. (N.T. at 77-79). For example, Sensenig noted that

Appellant's pinpoint pupils, glassy eyes, and bloodshot eyes on the night in question were

different from how his eyes appeared during previous encounters. Id.

I.      Did the trial court err by allowing the admission of evidence concerning Appellant's
        refusal to submit to a blood test?

        While acknowledging that current case law allows for the admission of an individual's

refusal to submit to a blood test to show consciousness of guilt, Appellant argues the trial court

erred in allowing the admission of his refusal and case law should be overturned. See Statement.


        s Officer Myers testified that he did not think Appellant was pulling onto the shoulder to allow
him to pass, as Appellant never activated his hazard lights or waved Myers past him. (N.T. at 16, 20).

                                                    7
                                                                                                       2_0pinion




        A trial court's evidentiary ruling will stand absent an abuse of discretion. Commonwealth

v. Rivera, 983 A.2d 1211, 1228 (Pa. 2009). "Discretion is abused when the course pursued

represents not merely an error of judgment, but where the judgment is manifestly unreasonable or

where the law is not applied or where the record shows that the action is a result of partiality,

prejudice/bias or ill will." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000)). The fact that a reviewing court might

have reached a different conclusion than the trial court is not sufficient for a finding of an abuse

of discretion. Commonwealth v. Hairston, 84 A.3d 657, 664-65 (Pa. 2014).

       Under 75 Pa.C.S.A. § 1547(e):

       (e) Refusal admissible in evidence.--In any summary proceeding or criminal
       proceeding in which the defendant is charged with a violation of section 3802 or any
       other violation of this title arising out of the same action, the fact that the defendant
       refused to submit to chemical testing as required by subsection (a) may be introduced
       in evidence along with other testimony concerning the circumstances of the refusal.
       No presumptions shall arise from this evidence but it may be considered along with
       other factors concerning the charge.

75 Pa.C.S.A. § 1547(e). In Commonwealth v. Bell, 167 A.3d 744 (Pa. Super. 2017), the Superior

Court held that the defendant had no constitutional right to refuse a blood test upon his lawful

arrest for DUI, and thus it was constitutionally permissible for the prosecution to introduce

evidence of this refusal at his trial on DUI charges to show consciousness of guilt. Id at 749.

The court, interpreting Birchfield v. North Dakota, 519 U.S._, 136 S.Ct. 2160 (2016),

concluded that based on the United States Supreme Court's language approving civil penalties in

implied consent laws, it was therefore reasonable to deem that motorists have consented to civil

penalties and evidentiary consequences if they choose to refuse to submit to chemical testing

upon a lawful arrest for DUI. Bell, 167 A.3d at 750.


                                                  8
                                                                                                            2_0pinion




        Here, Appellant was arrested for driving under the influence of a controlled substance and

was asked to submit to a blood test after being told his license would be suspended if he refused

to do so. Appellant then refused the blood draw. As such, the court was permitted to consider

Appellant's refusal as evidence of consciousness of guilt. Because the admission of Appellant's

refusal to submit to the blood draw complied with current applicable case law, the court did not

abuse its discretion. Assuming, arguendo, the court erred in allowing this evidence, the error

was harmless because other properly admitted evidence was sufficient to establish Appellant's

guilt beyond a reasonable doubt. See Commonwealth v. Yockey, 158 A.3d 1246, 1254 (Pa.

Super. 2017) (an erroneous ruling on an evidentiary issue does not automatically entitle a

defendant to relief where the error was harmless).

II.     Did the Commonwealth present sufficient evidence to prove beyond a reasonable
        doubt that Appellant committed the offense of driving under the influence?

        Appellant next contends the evidence was insufficient to find him guilty because there

was no blood test to prove he was intoxicated, he was unable to complete any of the field

sobriety tests due to his physical impairment, and the only evidence presented consisted of an

observation by an off-duty police officer whose personal vehicle did not have video equipment

which could have been used to record Appellant's driving. See Statement.6

        To preserve a sufficiency of the evidence claim, a 1925(b) statement must specify the

elements for which the evidence was insufficient. Commonwealth v. Manley, 985 A.2d 256, 262


        6
           The court found Appellant guilty of DUI after considering all evidence presented at trial,
including the erratic driving, constricted pupils, Appellant's admission to taking Hydrocodone and
Demerol that day, his consciousness of guilt by refusing to submit to blood testing despite the loss of
license, the opinion of Officer Myers that Appellant was under the influence of a controlled substance
which impaired his ability to drive, and the opinion of Officer Sensenig that Appellant was driving under
the influence of a controlled substance that impaired his ability to drive. (N.T. at 83-84).

                                                    9
                                                                                                              2_0pinion




(Pa. Super. 2009). 7 In the present case, because Appellant has specified the crime and the

element upon which the evidence was insufficient, he has preserved this claim.

        Appellate courts are governed by the following principles when reviewing a sufficiency

of the evidence claim:

         [The] standard when reviewing the sufficiency of the evidence is whether the
        evidence at trial, and all reasonable inferences derived therefrom, when viewed in the
        light most favorable to the Commonwealth as verdict winner, are sufficient to
        establish all elements of the offense beyond a reasonable doubt. [The Court] may not
        weigh the evidence or substitute [its] judgment for that of the fact-finder.
        Additionally, the evidence at trial need not preclude every possibility of innocence,
        and the fact-finder is free to resolve any doubts regarding a defendant's guilt unless
        the evidence is so weak and inconclusive that as a matter oflaw no probability of fact
        may be drawn from the combined circumstances. When evaluating the credibility
        and weight of the evidence, the fact-finder is free to believe all, part, or none of the
        evidence. For purposes of [the Court's] review under these principles, [the Court]
        must review the entire record and consider all of the evidence introduced.

Commonwealth v. Love, 896 A.2d 1276, 1283 (Pa Super. 2006) (internal quotations and citations

omitted). "[I]t is permissible for the .-ier of fact to draw inferences based on the evidence

presented by the Commonwealth." Commonwealth v. Brosko, 365 A.2d 867, 869 (Pa. Super.

1976). Furthermore, the Commonwealth may sustain its burden of proof by circumstantial

evidence alone, "so long as the combination of the evidence links the accused to the crime

beyond a reasonable doubt." Commonwealth v. Lee, 956 A.2d 1024, 1027 (Pa. Super. 2008);

Commonwealth v. Steele, 559 A.2d 904, 909 (Pa. 1989).



        7
           In Manley, the defendant waived any challenge to the sufficiency of the evidence where the
statement did not specify how the evidence failed to establish the elements of the offenses. 985 A.2d at
262. In Commonwealth v. Freeman, 128 A.3d 1231 (Pa. Super. 2015), the defendant waived his
challenge to the sufficiency of the evidence where he contended ''the evidence at trial was insufficient to
sustain a conviction of the crimes charged," the statement did not specify which element or elements of
the relevant crimes, and it did not specify which crimes the Commonwealth failed to prove beyond a
reasonable doubt. Id. at 1247-48.

                                                    10
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        The relevant section of the DUI statute involving controlled substances is as follows:

        (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:
               (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)(2). The Commonwealth must prove "that [Appellant] was under the

influence of a drug to a degree that impairs his or her ability to safely drive or operate a vehicle."

Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008).

        In Commonwealth v. Etchison, 916 A.2d 1169 (Pa. Super. 2007), the Superior Court

found there was insufficient evidence to uphold the defendant's DUI charge involving controlled

substances where the defendant was observed by a state trooper traveling in the wrong direction

on an exit ramp, the defendant failed field sobriety tests, and his blood test revealed 53

nano grams of metabolites of cannabinoids. Id. at 1171. The Superior Court reasoned that the

Commonwealth presented no evidence to support a conclusion that the defendant was under the

influence of a drug or combination of drugs at the time he was stopped such that his ability to

drive was impaired, in part due to testimony from a Commonwealth expert witness that the

presence of metabolites of cannabinoids is not an indication of present impairment but only that a

substance was previously ingested. Id. at 1172.

       However, in Williamson, the Superior Court found that "[a]ll of this evidence supports

the Commonwealth's case-in-chief to fulfill its burden of proof that Williamson was unfit to

operate a vehicle as defined in section 3 802( d)(2)," where the Commonwealth planned to present

evidence of the defendant's erratic driving prior to arrest, testimony from the arresting officer



                                                  11
                                                                                                    2_0pinion




regarding defendant's demeanor, her failure of two field sobriety tests, and a lab report showing

that the defendant's urine tested positive for the presence of controlled substances. 962 A.2d at

1204. Additionally, Williamson herself admitted to ingesting two different drugs hours before

the traffic stop. Id. at 1206.

        The present case is analogous to Williamson. Officer Myers testified that he was trained

to recognize whether a driver is intoxicated or under the influence of controlled substances. He

has also had many opportunities to investigate individuals who he believed were impaired while

behind the wheel of a car. Typical indicators of an intoxicated driverinclude weaving in and out

of their lane, increasing or decreasing their speed, and erratic movements.

       In this case, Appellant was driving erratically by going approximately 15 miles under the

speed limit, decreasing and increasing his vehicle speed, weaving back and forth onto the

shoulder of the road, almost striking a bicyclist who was on the shoulder of the road, almost

striking several mailboxes off the roadway, and making an abrupt turn without signaling. When

he later interacted with Appellant at the police station, Myers found that Appellant's speech and

movements were slow and his pupils were very pinpoint. Based on his training, experience, and

observations, Myers opined that the driving was consistent with someone who was under the

influence, and Appellant was unable to control or operate his vehicle in a safe manner.

       Officer Sensenig has extensive training in pharmacology, he received extensive training

in detecting impaired drivers, and he has made about 35 DUI arrests. He has also observed

people under the influence of controlled substances while working for several years as a

paramedic. Sensenig initiated the traffic stop in the instant case and immediately observed that

Appellant's pupils were abnormally pinpoint for the dark lighting conditions, particularly in


                                                12
                                                                                                                2_0pinion




comparison to the two passengers. Appellant's eyes were also glassy and bloodshot. When

Sensenig moved his flashlight, Appellant's pupil size did not change. From previous

interactions, Sensenig noticed that the appearance of Appellant's eyes during this incident was

not typical. Based on his training, experience and observations, Sensenig concluded that

Appellant was under the influence of a controlled substance which impaired his ability to drive.

       Appellant was unable to perform field sobriety tests because of injuries. Nevertheless,

Appellant admitted he took Hydrocodone and was given a shot of Demerol earlier that day.

Furthermore, Appellant demonstrated a consciousness of guilt by refusing to submit a blood

sample, stating he was concerned the drugs from the hospital may show up on the screen and

there was a chance the dose of Hydrocodone he took that morning was still in his system.

       Based on the foregoing, and all reasonable inferences derived therefrom, when viewed in

the light most favorable to the Commonwealth as verdict winner, the Commonwealth did present

sufficient evidence to prove beyond a reasonable doubt that Appellant was under the influence of

a drug or combination of drugs to a degree which impaired his ability to safely drive, operate, or

be in actual physical control of the movement of his vehicle.

                                          CONCLUSION


       The trial court did not err when it allowed the admission of evidence concerning

Appellant's refusal to submit to a blood test. Moreover, the evidence was sufficient to convict

Appellant of DUI. Therefore, this appeal should be denied.
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