J-S61028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 OCTOBER 17, 2017

        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

Appellant’s conviction but vacate her sentence and remand for resentencing

and correction of the record.

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

Trooper Mark Puopolo received a radio dispatch regarding a gray Jeep
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. §§ 3802(d)(2), 3309(1), and 3714, respectively, according to the
trial court’s opinion. See Trial Court Opinion (TCO), 4/3/17, at 2-3. We will
detail our further concerns with the state of the certified record and Appellant’s
sentence infra.
J-S61028-17



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

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.

____________________________________________


2Appellant 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,



                                           -2-
J-S61028-17



Id. at 30. She was sleepy and slow in her speech and responses but talkative,

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.

       Initially, we note our concern regarding the abysmally contradictory and

error-filled state of the record. The court indicates that Appellant 1) was found

guilty of “all charges” following a bench trial on November 23, 2016, and 2)

was sentenced on the above charges to six months of intermediate

punishment. See TCO at 2-3. The docket, the notes of testimony, and the

criminal information do not support these contentions.

       First, the docket does not appear to accurately reflect the dates or

events in the case. The notes of testimony indicate a bench trial was held

November 23, 2016; however, the docket indicates that on November 23,

2016, the court scheduled a bench trial for February 7, 2017. See Docket,

CP-45-CR-0001111-2016, at 6. The notes of testimony indicate that Appellant

was sentenced on February 7, 2017; however, the docket indicates that on
____________________________________________


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.

                                           -3-
J-S61028-17



February 10, 2017, Appellant 1) entered a guilty plea, and 2) a sentence was

imposed. See Docket, CP-45-CR-0001111-2016, at 7.

      The actual charges and their dispositions are equally inconsistent in the

docket, notes, and the rest of the certified record. The criminal complaint

states that at offenses I, II, and III, Appellant was charged with driving under

the influence of alcohol or a controlled substance. See Criminal Complaint,

12/28/15, at 1-2.     Appellant was charged at offense IV with driving on

roadways laned for traffic. Id. at 3. Appellant was charged at offense V with

careless driving. Id. at 4. The original criminal information also reflects this

order of charges. See Criminal Information, 6/6/2016, at 1-2. The amended

criminal information charged Appellant with count I, driving under the

influence of a controlled substance, count II, disregarding traffic lane (single),

and count III, careless driving. See Amended Criminal Information, 11/8/16,

at 1-2.

      The docket states that Appellant was charged with three counts of DUI

– Controlled Substance at counts I, IV, and V, and that she was charged with

disregarding a traffic lane at count II and careless driving at count III. See

Docket, CP-45-CR-0001111-2016, at 3. In the final disposition, the docket

indicates that Appellant pleaded guilty to one count of DUI – controlled

substance, at count I. Id. at 3-4. Counts II and III, disregarding a traffic

lane and careless driving, remain “held for court.” Id. at 3. Counts IV and V,

DUI – Controlled Substance are “dismissed by information.” Id. at 3-4.




                                      -4-
J-S61028-17



      At trial, at least according to the notes of testimony, the court found

Appellant guilty on all counts, and that same day, entered an order finding

Appellant guilty of “Counts I, II, and III, DUI,” as well as “Count IV – Disregard

Traffic Lane” and “Count V – Careless Driving.” See N.T., 11/23/16, at 45-

46. Further, the certified record contains a court order on that same date

indicating that Appellant was convicted at bench trial of counts I, II, and III,

driving under the influence, count IV, disregarding traffic lane, and count V,

careless driving. See Order, 11/23/16, at 1-2.

      At sentencing, the court did not state on the record that Appellant was

being sentenced to intermediate punishment or the length of the sentence,

only indicating that Appellant must spend thirty days on house arrest. See

N.T., 2/7/17, at 2-4. The order as transcribed in the notes does not identify

the charges constituting each counts. Id. At sentencing, the court entered

an order that on count I, Appellant was to undergo thirty days of electronic

monitoring and pay fines, fees, and costs, and undergo a license suspension

for one year. Id. at 4. The court stated that counts II and III merged for

sentencing purposes.     Id.   The court fined Appellant $25.00 for count IV,

disregarding a traffic lane, and a $25.00 fine for count V, careless driving. Id.

      In contrast, the sentencing order contained in the certified record states

that Appellant pleaded guilty to driving under the influence – impaired ability

– first offense, and that she would be placed on intermediate punishment for

six months, with thirty days of house arrest, and a $300.00 fine, costs of

electronic monitoring, and fees. See Order of the Court, 2/7/17, at 1. The

                                      -5-
J-S61028-17



sentencing order mentions only the charge for DUI, and does not indicate a

disposition for the other charges for which Appellant was convicted.           Id.

Additionally, the sentencing order does not mention the $25.00 fines imposed

for disregarding a traffic lane or careless driving. Id.

      The   court’s   Pa.R.A.P.   1925(a)   opinion   reflects   none   of   these

inconsistencies but merely states that appellant was convicted of DUI,

disregarding traffic, and careless driving, and was sentenced to six months of

intermediate punishment and thirty days of house arrest. See TCO at 1-3.

Again, we note our concern with the state of the record and admonish both

the trial court and counsel for allowing the record to be transmitted in such a

state. See, e.g., Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super.

2006) (noting that it is the appellant’s responsibility to ensure the

transmission of a complete record to allow this court an opportunity for

meaningful review).

      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.

      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?


                                      -6-
J-S61028-17



       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?

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.



____________________________________________


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

                                           -7-
J-S61028-17


      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,
      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,

                                      -8-
J-S61028-17



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

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.

      We cannot, however, affirm Appellant’s sentence.             Our Court’s

“authority to review a sentence is governed by 42 Pa.C.S. § 9781.”

Commonwealth v. Archer, 722 A.2d 203, 209 (Pa. Super. 1998) (en banc).

Moreover, challenges to an illegal sentence may never be waived, and also

may be reviewed sua sponte by this Court. Commonwealth v. Randal, 837

                                      -9-
J-S61028-17



A.2d 1211, 1214 (Pa. Super. 2003). An illegal sentence must be vacated. Id.

Here, it is impossible to determine, from the record, what Appellant’s sentence

actually was. Sentencing orders contradict the docket and both contradict the

court. The sheer level of error in the certified record makes it impossible to

review the legality of this sentence, and accordingly, we vacate the sentence

and remand for resentencing. The court is further directed to conduct a review

of the record and ensure that these discrepancies are corrected prior to

retransmitting said record.

      Conviction affirmed.    Judgment of sentence vacated.     Remanded for

resentencing and correction of the record. Jurisdiction retained.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2017




                                    - 10 -
