J-S01007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              : IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
             v.                           :
                                          :
                                          :
MELVIN ORLANDO CAMP,                      :
                                          :
                   Appellant              :       No. 791 MDA 2017

            Appeal from the Judgment of Sentence April 12, 2017
             in the Court of Common Pleas of Bradford County,
            Criminal Division at No(s): CP-08-CR-0000537-2016


BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                          FILED MARCH 21, 2018

      Melvin Orlando Camp (“Camp”) appeals from the judgment of

sentence imposed following his conviction of driving under the influence

(“DUI”) of a controlled substance.     See 75 Pa.C.S.A. § 3802(d)(2).       We

affirm.

      The trial court set forth the relevant underlying facts as follows:

      On February 7, 201[6], [around 4:00 pm.,] Trooper [Anthony]
      Caputo [(“Trooper Caputo”)] was dispatched to a 2[-]vehicle
      crash in Rome Township. Upon arriving at the scene, he was
      interviewing both parties involved in the accident and detected
      signs of impairment in [Camp]. He detected slurred speech,
      constricted pupils and body tremors.           He administered
      standardized field sobriety tests and concluded [that Camp] was
      under the influence of a narcotic. Trooper Caputo reached this
      conclusion through his training and experience, the signs set
      forth above, raised taste buds in the back of tongue indicating
      recent use of a stimulant, [horizontal gaze nystagmus (“HGN”)]
      test indicating no smooth and equal tracking of eyes, missed
      steps, unable to understand instructions, lack of smooth pursuit
      in both eyes, unable to keep balance while performing walk and
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      turn test, body was shaking, raised arms and put foot down
      while performing one leg stand. [Camp] was then placed in
      custody for suspicion of [DUI] and was transported for a blood
      draw. Blood was unable to be drawn. Trooper [Caputo] asked
      for a Drug Recognition Expert [(“DRE”)]. [Camp] did advise
      Trooper [Caputo] that he was taking Oxycodone for back pain
      and that it was prescribed. On cross[-]examination, Trooper
      [Caputo] agreed that if [Camp] had physical problems it could
      influence whether the tests could be passed.

      Corporal [Joseph] Mitchell [(“Corporal Mitchell”)] is a [DRE].
      Training to become a DRE is through the State Police and other
      organizations involving multiple trainings:     i.e.[,] a 3[-]day
      course learning drug categories, general indicators of each drug,
      etc.; a 10[-]day plus 7 days at the Academy and a final exam; 7
      days at a drug rehabilitation center conducting evaluations on
      individuals arriving who are impaired; a 2[-]day course at [the]
      [A]cademy and [a] final exam.

      Corporal Mitchell conducted the drug recognition evaluation. The
      test takes approximately 45 minutes. Initially[,] questions are
      asked to rule out a medical emergency, epilepsy, diabetic shock,
      brain, traumatic injury or physical defect.      [Camp] did tell
      Corporal [Mitchell] that he had a back injury and surgery and
      arthritis. [Camp] also told Corporal [Mitchell] the medications
      he was taking, Vicodin, Valium, Xanax, [] and he had consumed
      marijuana. Corporal [Mitchell] noted that [Camp’s] perception of
      time was impaired; his speech was slurred; face was flushed;
      coordination was poor, feet were dragging; eyes had red
      conjunctivae (an indicator for marijuana use) droopy eye lids;
      tremors in the arms. Further, HGN test, Romberg balance, walk
      and turn and one[-]leg stand was attempted[,] but [Camp] could
      not do [the tests]. Corporal [Mitchell] concluded that [Camp]
      was under the influence of a drug to the extent that it rendered
      him incapable of safe driving-drug categories of [central nervous
      system (“CNS”)] depressant, narcotic analgesic and CNS
      stimulant.

      [Camp] testified that he had a bad car accident in 1996 with bad
      head injuries.

Trial Court Opinion, 8/8/17, at 1-3 (citations omitted).




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     Following a bench trial, Camp was convicted of DUI of a controlled

substance.   The trial court sentenced Camp to five days to six months in

prison, plus costs and fines.   Camp filed a timely Notice of Appeal and a

court-ordered Pa.R.A.P. 1925(b) Concise Statement.

     On appeal, Camp raises the following questions for our review:

     1.      Whether the [trial c]ourt erred in failing to dismiss the
             charges against [Camp] after learning that [Camp] was
             disabled and prescribed to consume the prescription drug
             alleged to be in his system when operating his motor
             vehicle on February 7, 2016?

     2.      Whether the trial [c]ourt erred in failing to dismiss the
             charges against [Camp] after learning that [Camp] was
             disabled and could not physically perform the field sobriety
             tests as demanded by the State Police on February 7,
             2016?

     3.      Whether the [trial c]ourt erred in not ruling that the
             evidence was insufficient as a matter of law to establish
             [Camp’s] guilt beyond a reasonable doubt on the charges?

     4.      Whether the [trial c]ourt erred in not finding that [Camp]
             was innocent as a matter of law[,] as the Commonwealth
             did not meet its burden of proof that [Camp] operated his
             motor vehicle while impaired?

     5.      Whether the [trial c]ourt erred in finding [Camp] guilty of
             the criminal charges because the [trial c]ourt’s verdict was
             based on insufficient evidence and/or was against the
             weight of the evidence?

     6.      Whether the evidence submitted at trial by the
             Commonwealth was insufficient as a matter of law to
             establish [Camp’s] guilt beyond a reasonable doubt on the
             charges?




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Brief for Appellant at 4-5.1

       Initially, Camp contends that the evidence was insufficient to support

his DUI conviction.        Id. at 10, 11-12, 14-20.     Camp argues that the

evidence did not demonstrate that his ability to drive the vehicle was

impaired, as Trooper Caputo never observed Camp driving and Camp’s

vehicle was not responsible for the accident. Id. at 14-15, 18, 19; see also

id. at 16, 18 (arguing that Camp’s wife’s testimony demonstrated that Camp

was not driving erratically).            Camp asserts that he was prescribed

Oxycodone for back pain, and that his back problems prevented him from

successfully performing the sobriety tests.       Id. at 15, 16, 17, 19.   Camp

further asserts that Trooper Caputo’s claim that he was slurring his speech is

not reliable because Trooper Caputo had never met Camp prior to the stop.

Id. at 14, 18. Camp claims that his admission to taking prescription drugs

does not render him incapable of driving his vehicle and does not support a

finding of DUI. Id. at 18, 20.

       Our standard of review for sufficiency of the evidence challenges is

well-settled:

____________________________________________


1 While Camp raises six questions for our review, his Argument includes a
single section wherein he raises sufficiency and weight of the evidence
claims. See Pa.R.A.P. 2119(a) (stating that “[t]he argument shall be
divided into as many parts as there are questions to be argued; and shall
have at the head of each part−in distinctive type or in type distinctively
displaced−the particular point treated therein.”). We will review each of
these claims in turn.



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      Whether, viewing all the evidence admitted at trial in the light
      most favorable to the Commonwealth as the verdict winner,
      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying
      the above test, we may not weigh the evidence and substitute
      our judgment for the fact-finder. In addition, we note that the
      facts and circumstances established by the Commonwealth need
      not preclude every possibility of innocence.           Any doubts
      regarding a defendant’s guilt may be resolved by the fact-finder
      unless the evidence is so weak and inconclusive that as a matter
      of law no probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.

Commonwealth v. Eichler, 133 A.3d 775, 787 (Pa. Super. 2016) (brackets

and citation omitted).

      Section 3802 of the Vehicle Code provides, in relevant part, 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).

      Section 3802(d)(2) “does not require proof of a specific amount of a

drug in the driver’s system. It requires only proof that the driver was under

the influence of a drug or combination of drugs to a degree that the ability to

drive is impaired.”   Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.

Super. 2012); see also Commonwealth v. Graham, 81 A.3d 137, 145


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(Pa. Super. 2013) (stating that “the focus of [s]ection 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.”) (citation, quotation

marks, and emphasis omitted). Further, section 3802(d)(2) “does not limit,

constrain, or specify the type of evidence that the Commonwealth can

proffer to prove its case.” Commonwealth v. Griffith, 32 A.3d 1231, 1239

(Pa. 2011).

      Here, Trooper Caputo testified that on February 7, 2016, he was

dispatched to a two-vehicle crash in Rome Township. N.T., 1/27/17, at 3-4,

9-10. Upon arriving at the scene, Trooper Caputo interviewed both parties,

including Camp. Id. at 4. With regard to Camp, Trooper Caputo detected

signs of impairment including slurred speech, constricted pupils, and body

tremors.   Id. at 4, 11-12, 13, 16; see also id. at 4 (wherein Trooper

Caputo observed raised taste buds in the back of Camp’s tongue, which

demonstrates recent use of drugs, specifically a stimulant). Trooper Caputo

administered standardized field sobriety tests. Id. at 4, 5. Trooper Caputo

stated the following with regard to the sobriety tests:

      For HGN, I observed lack of smooth pursuit, in both [Camp’s]
      right and left eyes. In the walk and turn, I observed [Camp]
      couldn’t keep his balance while performing the test. [Camp]
      stopped walking, he missed heel to toes, uh, steps off the line
      and raised his arms, and while performing the test, he had, his
      body was shaking and he had stiffness with his muscle. The one
      leg stand, - he raised his arms and he put his foot down, and he
      used both feet to[o] while using that test, he tried to do both.

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Id. at 5-6; see also id. at 20-21 (wherein Trooper Caputo admits that a

person with back problems would have difficulty performing the tests). As a

result of the failed tests, Trooper Caputo arrested Camp based upon his

belief that Camp was under the influence of narcotics.               Id. at 4, 6-7.

Trooper Caputo transported him to Towanda Memorial Hospital for a blood

draw, where the nurse was unable to draw blood from Camp on four

separate occasions. Id. at 6, 24, 28. As a result, Trooper Caputo requested

a DRE. Id. at 6, 26-27. While waiting for the DRE, Camp indicated that he

was prescribed Oxycodone for back pain. Id. at 6, 19.

       Corporal Mitchell, the DRE, stated that an evaluation, involving a

series of tests, questions and observations of the individual defendant, is

used to determine whether an individual is impaired, and whether the

impairment is related to a drug.          Id. at 31-32.   Corporal Mitchell testified

that prior to performing the evaluation, he provided Camp with Miranda2

warnings.     Id. at 38, 59-60.          In response to questioning by Corporal

Mitchell, Camp indicated that he had previously sustained a back injury and

that he was taking various prescription medications and had smoked

marijuana.     Id. at 41, 42, 44, 61-62, 64, 67, 69; see also id. at 51, 69

(wherein Corporal Mitchell stated that Camp admitted to consuming four

Vicodin pills in the morning).             Corporal Mitchell stated that Camp’s
____________________________________________


2   Miranda v. Arizona, 384 U.S. 436 (1966)



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perception of time was impaired; his speech was raspy and slurred; his face

was flushed; his eyes were bloodshot; his eyelids were droopy; he was

experiencing tremors; and his coordination was poor.           Id. at 42-45.

Corporal Mitchell also conducted physical tests, including HGN, walk and

turn, finger to nose, and one leg stand. Id. at 49, 61-64, 65-69. Corporal

Mitchell indicated that Camp had difficultly completing the tests.    See id.

Taking the circumstances in total, Corporal Mitchell concluded that Camp

was under the influence of drugs and was incapable of safely driving a

vehicle. Id. at 53-54.

      The trial court found the testimony provided by Trooper Caputo and

Corporal Mitchell to be credible.    See Trial Court Opinion, 8/8/17, at 4.

Thus, we conclude that the evidence presented at trial, viewed in the light

most favorable to the Commonwealth as the verdict winner, was sufficient to

establish that Camp was under the influence of a drug that impaired his

ability to drive safely.    See Griffith, 32 A.3d at 1240 (stating that the

evidence was sufficient to support defendant’s conviction under section

3802(d) where the officer observed defendant’s behavior and inability to

perform the field sobriety tests, and defendant admitted to taking

prescription   medication     the   morning   of   her   arrest);   see   also

Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (stating

that “[t]he Commonwealth may prove that a person is incapable of safe

driving through the failure of a field sobriety test.”). Moreover, even if the


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drugs were prescribed to Camp, this fact would not entitle Camp to relief as

the statute in question does not provide an exception for prescribed

medication. Accordingly, Camp’s sufficiency claims are without merit.

       Camp also contends that the verdict was against the weight of the

evidence. Brief for Appellant at 11, 13-14, 19.

       Preliminarily, we must address whether Camp properly preserved this

claim for our review.

       [A] weight of the evidence claim must be preserved either in a
       post-sentence motion, by a written motion before sentencing, or
       orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
       v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
       properly preserve the claim will result in waiver, even if the trial
       court addresses the issue in its opinion. Commonwealth v.
       Sherwood, 603 Pa. 92, 982 A.2d 483, 494 (2009).

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012).

       Here, Camp did not present a challenge to the weight of the evidence

in his post-sentence Motion, nor did he preserve the claim elsewhere.

Accordingly, he waived this claim. See id.3




____________________________________________


3 Even if Camp had not waived his weight of the evidence challenge, we
would have determined that it lacks merit, as the verdict does not shock our
collective conscience, for the reasons set forth in the trial court’s Opinion.
See Trial Court Opinion, 8/8/17, at 5; see also Commonwealth v. Miller,
172 A.3d 632, 643 (Pa. Super. 2017) (stating that appellant’s weight of the
evidence claim was without merit where appellant merely asked this Court to
reweigh the evidence and testimony in his favor).



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       Based upon the foregoing, we conclude that Camp’s claims are without

merit.4

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/21/2018



____________________________________________


4 We also note that the holding in Birchfield v. North Dakota, 136 S. Ct.
2160 (2016), is inapplicable to the instant case. The Birchfield Court held
that, because the taking of a blood sample is a search within the meaning of
the Fourth Amendment to the United States Constitution, police officers may
not compel the taking of a blood sample without a search warrant, absent an
applicable exception. See id. at 2185. After concluding that “the search
incident to arrest doctrine does not justify the warrantless taking of a blood
sample,” id., the Birchfield Court considered whether implied-consent laws,
which require cooperation with blood-alcohol testing as “a condition of the
privilege of driving on state roads,” could provide an exception to the
warrant requirement consistent with the federal constitution. Id. at 2169,
2185-86. The Birchfield Court held that, although implied-consent laws
that impose civil penalties and evidentiary consequences for refusing to
consent are constitutional, implied-consent laws that impose criminal
penalties for refusing to consent to a blood test are unconstitutional because
“motorists cannot be deemed to have consented to submit to a blood test on
pain of committing a criminal offense.” Id. at 2185-86. This Court recently
determined that Birchfield extends to cases where a “driver has been
arrested for a drug-related DUI.” Commonwealth v. Ennels, 167 A.3d
716, 721 (Pa. Super. 2017). However, Birchfield is inapplicable to the
instant case as blood could not be drawn from Camp, and thus, the
conviction was not based upon information from a warrantless blood draw.



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