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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA


                        v.

    MARTHA YVETTE TAYLOR

                             Appellant                 No. 852 EDA 2017


            Appeal from the Judgment of Sentence February 7, 2017
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0001111-2016


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                             FILED MARCH 02, 2018

        Appellant, Martha Yvette Taylor, appeals from the judgment of sentence

imposed February 7, 2017, following a bench trial resulting in her conviction

for driving under the influence of a controlled substance, impaired ability, first

offense; disregarding a traffic lane (single); and careless driving.1 We affirm.

        On October 27, 2015, at approximately 10:30 p.m., Pennsylvania State

Trooper Mark Puopolo received a radio dispatch regarding a gray Jeep

Cherokee SUV that was driving on Hollow Road in Smithfield Township,

Monroe County, Pennsylvania. See Notes of Testimony (N.T.), 11/23/16, at

6-7, 16. Upon encountering this vehicle, Trooper Puopolo observed it cross


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*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. §§ 3802(d)(2), 3309(1), and 3714, respectively.
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the double yellow line in the center of the road. Id. at 8. After moving his

police car to the right to avoid being struck by the other vehicle, Trooper

Puopolo conducted a traffic stop and made contact with Appellant. Id. at 8-

9.

       Appellant’s eyes were red, bloodshot, glassy, and had constricted pupils.

Id. at 9. Her movements were slow and sluggish. Id. Trooper Puopolo asked

Appellant if she was on any prescription medications or if she had taken

anything that would affect her driving ability. Id. at 10. Appellant informed

Trooper Puopolo that she had taken prescription phenobarbital earlier that

day. Id. at 11. Appellant walked with a cane, was unsteady and swaying on

her feet, and appeared disoriented when walking outside of the vehicle. Id.

at 12, 14.     Due to Appellant’s mobility issues and age, Trooper Puopolo

administered only a horizontal gaze nystagmus test. Id. at 12-13. Following

the test, he took Appellant to the Monroe County DUI Processing Center. Id.

at 13, 16.

       Police Sergeant Eric Smith processed Appellant later that night.2 Id. at

27. He observed that Appellant was disheveled and her clothing disorderly.

Id. at 30. She was sleepy and slow in her speech and responses but talkative,
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2 Appellant was read the DL-26 implied consent form prior to being given a
warrantless blood draw. Id. at 28. However, pursuant to recent case law,
such blood draws not based upon a warrant, case-specific exigency, or actual
consent absent coercion of criminal consequences, are banned pursuant to
Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). See Commonwealth
v. Ennels, --- A.3d ---, at *3-5, 2017 Pa. Super. 217 (filed July 11, 2017).
However, the results of the warrantless blood draw were not admitted into
evidence.

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polite, and cooperative. Id. at 30. She informed Sergeant Smith that she

was prescribed phenobarbital, cyclobenzaprine, and tramadol and had last

taken her medication at 12:00 p.m.          Id. at 30.     In Sergeant Smith’s

observation, it was unusual that Appellant was talkative but still experiencing

bouts of sleepiness. Id. at 30-31. During the interview, Appellant sporadically

burst into tears. Id. at 31. Appellant was arrested. Id.

      Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal. The court issued a responsive

opinion. Prior to the instant disposition, we vacated Appellant’s sentence and

remanded for resentencing based upon errors in the certified record. The trial

court has complied with our order, resentenced Appellant, and corrected the

certified record.

      On appeal, Appellant raises the following issues for our review:

      1. Was there sufficient evidence beyond a reasonable doubt to
      convict the [Appellant] of driving under the influence while
      impaired when the only evidence of her impairment was her
      admission that she had used her prescription drug that day?

      2. Was there sufficient evidence beyond a reasonable doubt to
      convict [Appellant] of driving under the influence, impaired
      ability?

      3. Did the [c]ourt incorrectly admit [Appellant’s] statement that
      she took her prescription that day, in violation of the corpus delicti
      rule?

      4. Was it necessary for the Commonwealth to call an expert
      witness to support that the supposed signs of impairment
      exhibited by the defendant were consistent with impairment from
      taking phenobarbital?


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Appellant’s Brief at 4.3

       Appellant’s third and fourth issues are waived for failure to include them

in her Pa.R.A.P. 1925(b) statement of errors complained of on appeal. See

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005); see also

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not

raised in accordance with the provision of this paragraph (b)(4) are waived.”).

       Appellant’s remaining issues challenge the sufficiency of the evidence to

support her conviction for driving under the influence. See Appellant’s Brief

at 9. Appellant claims the evidence was insufficient to support her conviction

because the only evidence of her impairment was her admission that she had

taken her medication and a single incident of driving over the line. Id. at 9.

Appellant contends that all of the signs of impairment were only side effects

of the medication she takes and consistent with her mobility issues. Id. at

11-12.

       We review a challenge to the sufficiency of the evidence as follows.

       In determining whether there was sufficient evidentiary support
       for a jury’s finding [], the reviewing court inquires whether the
       proofs, considered in the light most favorable to the
       Commonwealth as a verdict winner, are sufficient to enable a
       reasonable jury to find every element of the crime beyond a
       reasonable doubt.          The court bears in mind that: the
       Commonwealth may sustain its burden by means of wholly
       circumstantial evidence; the entire trial record should be
       evaluated and all evidence received considered, whether or not
       the trial court’s rulings thereon were correct; and the trier of fact,

____________________________________________


3 In her brief, Appellant has not numbered her questions; we have added
numeration for ease of analysis.

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      while passing upon the credibility of witnesses and the weight of
      the evidence, is free to believe all, part, or none of the evidence.

Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008) (citations omitted).

The applicable section of the Motor Vehicle Code defines DUI – general

impairment in the following manner:

      (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.

See 75 Pa.C.S. § 3802(d)(2); see also Commonwealth v. Griffith, 32 A.3d

1231, 1239-40 (Pa. 2011) (finding evidence sufficient to support conviction

where defendant was having trouble standing, failed sobriety test, and the

defendant told officer she had taken a drug).

      Here, the evidence was sufficient to support Appellant’s conviction.

Appellant was driving the vehicle at the time that she was stopped. Trooper

Puopolo observed her cross the median line once and nearly strike his vehicle.

Upon effectuating a traffic stop, Trooper Puopolo observed that Appellant’s

eyes were red, bloodshot, glassy, and had constricted pupils. She was slow,

sluggish, and unsteady on her feet. Appellant appeared disoriented and failed

a horizontal gaze nystagmus test. She informed Trooper Puopolo that she had

taken phenobarbital earlier that day. Sergeant Smith, who observed Appellant

in custody, noted that she was disheveled, had disorderly clothing, was sleepy

and slow, but polite, cooperative, and talkative. Appellant was emotional and


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cried sporadically.    Appellant admitted to having taken phenobarbital,

cyclobenzaprine, and tramadol.       Based on his experience, Officer Smith

believed Appellant was intoxicated.         All of this evidence supports the

contention that Appellant was intoxicated at the time she was pulled over and

was unable to safely operate her vehicle.

      Thus, the evidence was sufficient to support the conviction, as the

Commonwealth proved beyond a reasonable doubt that Appellant 1) was not

able to drive safely, and 2) her inability to drive safely was a result of having

taken a controlled substance. See Griffith, 32 A.2d at 1239-40; 75 Pa.C.S.

§ 3802(d)(2).     Appellant’s argument that the evidence was insufficient

because the drugs were prescribed is of no moment: the statute does not

provide an exception for prescribed medication. Accordingly, we affirm the

conviction. Diggs, 949 A.2d at 877.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/2/18




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