J-S47035-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
                    Appellee               :
                                           :
                    v.                     :
                                           :
ADAM WAYNE BELTZ,                          :
                                           :
                     Appellant             :       No. 2101 MDA 2014

       Appeal from the Judgment of Sentence Entered June 16, 2014,
               in the Court of Common Pleas of Berks County,
           Criminal Division, at No(s): CP-06-CR-0003661-2013

BEFORE:     ALLEN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED AUGUST 07, 2015

      Adam Wayne Beltz (Appellant) appeals from a judgment of sentence

entered after the trial court convicted him of violating 75 Pa.C.S.

§ 3802(d)(2). We affirm.

      The background underlying this matter can be summarized as follows.

Appellant was arrested after he crashed a vehicle over an embankment and

into a creek. At a nonjury trial, Appellant faced charges of violating several

driving-under-the-influence    (DUI)   statutes,    specifically:    75   Pa.C.S.

§§ 3802(d)(1),   3802(d)(2),     and   1543(b)(1.1)(i).      After   hearing   the

Commonwealth’s evidence, the trial court granted Appellant’s motion for

judgment of acquittal regarding subsections 3802(d)(1) and 1543(b)(1.1)(i).

The court, however, convicted Appellant of violating subsection 3802(d)(2).

That subsection provides as follows:



*Retired Senior Judge assigned to the Superior Court.
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      (d) Controlled substances.--An individual may not drive,
      operate or be in actual physical control of the movement of 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).

      After the trial court sentenced Appellant, he timely filed a post-

sentence motion. That motion was denied by operation of law on November

10, 2014. Appellant timely filed a notice of appeal. The trial court directed

Appellant to comply with Pa.R.A.P. 1925(b), and Appellant filed a 1925(b)

statement.       The court later filed an opinion consistent with Pa.R.A.P.

1925(a).

      In his brief to this Court, Appellant asks us to consider one question,

namely:

      Was not the evidence insufficient to support the verdict where
      the trial court granted the motion for judgment of acquittal as to
      the specific count involving the presence of cocaine metabolites,
      and convicted him of the driving under the influence of a
      controlled substance to such a degree that his driving was
      impaired?

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Appellant challenges the sufficiency of the evidence presented by the

Commonwealth at his trial.          More specifically, Appellant contends that,

because the Commonwealth’s expert testified that Appellant’s blood tested

positive   for    an   inactive   cocaine   metabolite   but   not   cocaine,   the




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Commonwealth failed to prove that Appellant drove while under the

influence of a controlled substance. We disagree.

     We review challenges to the sufficiency of the evidence as follows.

     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
     [that of] 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
     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. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citation

omitted). We further observe that, in Commonwealth v. Griffith, 32 A.3d

1231, 1239 (Pa. 2011), “our Supreme Court held[ that] the focus of

[subsection] 3802(d)(2) is not upon the type of evidence introduced, but

upon whether the totality of the evidence proved that the defendant’s

inability to drive safely was the result of the influence of a drug or

combination of drugs.”   Graham, 81 A.3d at 145 (citation, footnote, and

quotation marks omitted) (emphasis in original).




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      In relevant part, the Commonwealth presented the evidence that

follows at Appellant’s bench trial.   The Commonwealth’s first witness was

Mark Ruch.    On the morning of June 21, 2013, Mr. Ruch drank a cup of

coffee while sitting at the front of his apartment building.   He finished his

coffee and began to walk back to his apartment around 7:00 a.m., when he

“heard somebody laying on a car horn for about maybe 20 seconds or 30

seconds.” N.T., 4/11/2014, at 5. He heard a loud crash and “then, when

[he] got towards the end of [his] alley, [he] saw a car going backwards

down Peach Street towards the creek.”       Id.   The car was billowing steam

and smoke out of its front end. Mr. Ruch subsequently “heard a splash and

a thunk.” Id. at 6.

      Mr. Ruch approached the vehicle, which was sitting with its rear

bumper in a creek and its front bumper lying on the bank of the creek. Mr.

Ruch assisted Appellant to safety.1 Appellant indicated to Mr. Ruch that he

did not know what had happened to him.            Someone called emergency

services, and a police officer arrived soon thereafter.

      The Commonwealth next called to the stand Officer Kevin Mickle.

Officer Mickle had been employed by the Hamburg Borough Police

Department since 2013.       He had been employed as a law enforcement




1
  Mr. Ruch could not identify Appellant at trial. However, there is no dispute
that Appellant was the person Mr. Ruch encountered on this day.


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officer since 2010.      Officer Mickle was the first officer to respond to the

scene of the accident.

         According to Officer Mickle, Appellant stated that he could not

remember anything.         Officer Mickle performed a breathalyzer test on

Appellant, which “read all zeros.”      Id. at 15.    Eventually, state troopers

arrived on the scene and stood by as Officer Mickle conducted field sobriety

tests with Appellant.2

         The officer conducted three field sobriety tests on Appellant: the walk-

and-turn test, the one-leg-stand test, and the horizontal-gaze-nystagmus

test.3     As to the walk-and-turn test, Officer Mickle testified, “[At] the

instruction stage [Appellant] started too soon and couldn’t keep his balance.

During the testing stage of that, he took too many steps in the first nine

steps and too many steps on the second nine steps and did an improper

turn.” Id. at 17. Appellant also failed the one-leg-stand test. The officer’s

testimony suggests that Appellant passed the horizontal-gaze-nystagmus

test.      However, while Officer Minkle was administering that test on

Appellant, the officer observed Appellant “closing his eyes, his eyes were

barely open, and he was swaying side to side to the point where [the officer]

thought [Appellant] may fall over during the test.” Id.

2
  Hamburg emergency medical services also arrived on the scene. Appellant
refused any medical treatment.

3
  On cross examination, Officer Mickle testified that, in 2009 or 2010, he
received standard training for drug and alcohol related field sobriety testing.


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      In terms of how the vehicle Appellant was driving ended up where it

did, Officer Mickle’s investigation revealed that Appellant was traveling

eastbound on Pine Street and turned northbound, when he struck a cement

barrier. The officer testified as follows.

      The vehicle must have went in reverse or slid across the
      concrete barrier and continued northbound on Primrose Street.
      And then there’s other photos that depict that the vehicle either
      sideswiped or struck other buildings or cement barriers in the
      area before either going in reverse or just drifting backwards
      until it went down the embankment.

Id. at 20.

      After the field sobriety tests, Officer Mickle arrested Appellant for

suspicion of DUI. The officer escorted Appellant to St. Joe’s Medical Center,

and Appellant consented to a blood draw at approximately 8:30 a.m.         A

phlebotomist then drew a blood sample from Appellant.         Officer Mickle

opined that, based upon his experience, Appellant’s performance on the field

sobriety tests demonstrated that Appellant was not capable of safely driving

a vehicle on the morning in question.

      The Commonwealth’s final witness was Ayako Chan-Hosokawa.           Ms.

Chan-Hosokawa is the forensic toxicologist who tested Appellant’s blood

sample.      Ms. Chan-Hosokawa did not find cocaine in Appellant’s system;

however, she did find 500 nanograms per milliliter of benzoylecgonine in

Appellant’s blood. According to Ms. Chan-Hosokawa, “[b]enzoylecgonine is a

pharmacologically inactive metabolite of cocaine -- break down of cocaine.




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That’s what the body does to get rid of some foreign substances to the body

from the body.” Id. at 52. Cocaine is a Schedule II controlled substance.

35 P.S. § 780-104(2)(i)(4).

     In terms of how cocaine and benzoylecogonine affect a person, Ms.

Chan-Hosokawa offered the following testimony.

     []So [benzoylecogonine] does not have any affect in human
     performance, however, it is the indicator that somebody did
     ingest cocaine. And the cocaine is a central nervous system
     stimulant, so as a stimulant, cocaine can affect people in two
     different way[s].      Initial way is restlessness, increase[d]
     talkativeness, a little bit self-absorbed, paranoid psychosis,
     disorientation, hallucination has been reported, delusion.

           The second phase is dysphoric phase. During that time
     somebody has finished a rush, and their rush phase, so they
     experience similar to central nervous system depressant-type
     work, so one can be very drowsy, they’re agitated, and they
     experience some type of psychosis and they would be craving
     the drugs.

Id. at 54-55.

     The prosecutor asked whether the process of cocaine disappearing

from the body and the body being left with benzoylecogonine can cause a

person to be drowsy or agitated or cause some sort of psychosis. Ms. Chan-

Hosokama answered, “The cocaine does not.        The benzoylecogonine itself

does.” Id. at 55. According to Ms. Chan-Hosokama, when cocaine wears

off, a person can be relaxed or somewhat drowsy.

     On     cross-examination,   Ms.     Chan-Hosokama       testified   that

benzoylecogonine itself has no impairing effect on a person. Id. at 57. She




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further stated that the level of benzoylecogonine in Appellant’s blood

suggests generally that he consumed cocaine at least more than two hours

before his blood was drawn.4

      It is indisputable that Appellant drove a vehicle in an unsafe manner.

For purposes of determining whether the Commonwealth proved that

Appellant violated subsection 3802(d)(2), the only question is whether

Appellant’s inability to drive safely was the result of the influence of a drug.

When the totality of the evidence presented at trial is viewed in a light most

favorable to the Commonwealth, it sufficiently demonstrates that Appellant’s

inability to drive safely was the result of the influence of cocaine.

      More specifically, Ms. Chan-Hosokama’s expert testimony establishes

that, at least two hours before his blood was drawn at approximately 8:30

a.m on June 21, 2013, Appellant consumed cocaine.           Appellant’s accident

occurred around 7:00 a.m. that day. Moreover, Appellant’s overall behavior

immediately after the accident, his inability to pass the battery of field

sobriety tests, and his drowsiness during those tests sufficiently established

that he was driving during the dysphoric phase of cocaine use.


4
  On direct examination, Ms. Chan-Hosokama stated that the length of time
benzoylecogonine stays in a person’s system is dependent upon several
factors. She explained that a chronic user may have the metabolite in his or
her system of a few days, whereas an occasional user may have it in his or
her system for a day or two. She further explained that the manner in
which the a person consumes the drug, i.e., smoking it versus snorting it,
and whether the person binged on cocaine also affect how long the
metabolite stays in a person’s blood. N.T., 7/8/2014, at 55-56.


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     For these reasons, we conclude that the totality of the evidence

presented by the Commonwealth at trial proved that Appellant’s inability to

drive safely was the result of the influence of cocaine.                  See, e.g.,

Commonwealth v. Hutchins, 42 A.3d 302, 309 (Pa. Super. 2012) (holding

evidence sufficient to establish that a controlled substance rendered

Hutchins’   driving   unsafe   although   blood    tests   revealed   a    marijuana

metabolite but no active marijuana where police observed signs of marijuana

use immediately following the collision)          Accordingly, the evidence was

sufficient to demonstrate that Appellant violated subsection 3802(d)(2).

We, therefore, affirm Appellant judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/7/2015




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