J-S78019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    KENNETH JOSEPH TROUTMAN                    :
                                               :
                      Appellant                :   No. 627 WDA 2017

         Appeal from the Judgment of Sentence Entered March 23, 2017
    In the Court of Common Pleas of Butler County Criminal Division at No(s):
                           CP-10-CR-0001045-2016


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 26, 2018

        Appellant, Kenneth Joseph Troutman, appeals from the March 23,

2017 Judgment of Sentence entered in the Butler County Court of Common

Pleas following his conviction of Driving Under the Influence—Controlled

Substance (“DUI”) and the summary offense of Signal Improper.1                On

appeal, Appellant challenges the sufficiency of the evidence in support of his

DUI conviction.      After careful review, we affirm on the basis of the trial

court’s Opinion.

        The facts, as gleaned from the record, are as follows. On February 23,

2016, Trooper Thomas Karlo of the Pennsylvania State Police observed

Appellant driving on State Route 28 in Buffalo Township, Butler County.


____________________________________________


1   75 Pa.C.S. § 3802(d)(1)(ii) and 75 Pa.C.S. § 3334(b).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S78019-17



Trooper Karlo observed Appellant change from the right lane to the left lane

after Appellant briefly activated his turn signal. He then observed Appellant

change back to the right lane. After returning to the right lane, Appellant’s

turn signal remained on for at least ten seconds.           At that point, Trooper

Karlo activated his overhead lights and conducted a traffic stop.

       Trooper Karlo approached the passenger side of Appellant’s vehicle

and asked Appellant for his documents and identification.           As he did so,

Trooper Karlo noticed Appellant laughing, which he thought was odd, and

observed two pill bottles inside Appellant’s vehicle. Trooper Karlo observed

that Appellant’s pupils were extremely dilated and asked Appellant what

medications he was taking. Appellant replied that he was taking viibryd and

clonazepam,2 and indicated that he had taken a clonazepam prior to driving.

At Trooper Karlo’s request, Appellant agreed to undergo field sobriety

testing.

       Based on Trooper Karlo’s observations of Appellant’s performance on

the tests, Trooper Karlo concluded Appellant had been driving under the

influence of a controlled substance.           He placed Appellant in custody and

transported him to the Kittanning State Police Barracks.

       At the Kittanning Barracks, Appellant agreed to undergo an evaluation

by Corporal Christopher Robbins, the Barrack’s Patrol Unit Supervisor and a

____________________________________________


2 Viibryd is an antidepressant and clonazepam is a sedative used to treat
seizures, panic disorder, and anxiety.



                                           -2-
J-S78019-17



drug recognition expert. As part of the examination, Appellant admitted to

having taken medication. Corporal Robbins concluded after his examination

that Appellant was under the influence of a central nervous depressant or

depressants     and    was    incapable        of    safely   driving   a   vehicle.   The

Commonwealth charged Appellant with the above offenses, as well as Failure

to Discontinue Signal and Careless Driving.3

        Following a non-jury trial at which Trooper Karlo and Corporal Robbins

testified, the court convicted Appellant of DUI and Signal Improper.                   On

March 23, 2017, the court sentenced Appellant to serve six months’

intermediate punishment for the DUI conviction, the first 72 hours on house

arrest, and pay a fine of $1,000.00.                The court imposed a sentence of 60

hours’ community service and a $25.00 fine for Appellant’s Signal Improper

conviction. This appeal followed.4

        On appeal, Appellant challenges the sufficiency of the Commonwealth’s

evidence in support of his DUI conviction. Appellant’s Brief at 2. Appellant

baldly claims that Trooper Karlo’s testimony that Appellant left his turn

signal on for approximately ten to twelve seconds after changing lanes and

Corporal Robbins’ testimony that Appellant showed signs of being under the




____________________________________________


3   75 Pa.C.S. § 3334(d) and 75 Pa.C.S. § 3714(a), respectively.

4   Both Appellant and the trial court complied with Pa.R.A.P. 1925.



                                           -3-
J-S78019-17



influence of a depressant do not comprise sufficient evidence to prove that

he was incapable of driving safely. Id. at 3-5.

      To begin, we note our standard of review of a challenge to the

sufficiency of the evidence:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations

omitted).

      Evidentiary sufficiency presents a question of law; thus, our standard

of review is de novo and our scope of review is plenary. Commonwealth v.

Johnson, 107 A.3d 52, 66 (Pa. 2014) (citation omitted).

      A person commits the offense of DUI—Controlled Substance if he or

she is “under the influence of a drug or combination of drugs to a degree

which impairs [his or her] ability to safely drive, operate[,] or be in actual

physical control of the movement of the vehicle.” 75 Pa.C.S. §3802(d)(2).

      Following our review of the Notes of Testimony, we conclude that the

Commonwealth adduced sufficient evidence from which the trial court,

sitting as fact-finder, could have concluded that Appellant was incapable of

safely operating his vehicle.    The trial court authored a comprehensive

Opinion wherein it articulated the specific evidence upon which it based its

                                     -4-
J-S78019-17


verdict, and we adopt that Opinion as our own and affirm the Judgment of

Sentence. See Trial Ct. Op., 5/25/17, at 3-5 (noting its conclusion that, in

light of the testimony of Trooper Karlo and Corporal Robbins, and Appellant’s

admission that he had taken prescription medications prior to driving, the

Commonwealth’s evidence that Appellant had driven his vehicle on a

highway or roadway while under the influence of a drug or combination of

drugs to a degree that impaired his ability to safely drive the vehicle).

      The parties are directed to attach the trial court’s May 25, 2017

Opinion to all future filings.

      Judgment of Sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2018




                                     -5-
                             IN THE COURT OF COMMON PLEAS
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         vs.                                                                                  (
                                                                      C.A. No. 1045 of 2016
                                                                                                                P
 KENNETH J. TROUTMAN

 For the Commonwealth:          Terri M. Schultz, Esq., Assistant District Attorney
 For the Defendant:             Linda L. Ziembicki, Esq.

                    ORDER OF COURT PURSUANT TO Pa.R.A.P.                   1925(111


        AND NOW, this 25th day of May, 2017, the Clerk of Courts is directed to transmit the

above record to the Superior Court of Pennsylvania in accordance with the Rules of
                                                                                   Appellate
Procedure.

        By order dated April 24, 2017, the Defendant was directed to file and to serve on the

judge a concise statement of errors complained of on appeal within twenty-one days. That
                                                                                         order
was entered on the docket on April 25, 2017, and copies of it were distributed on that date.
                                                                                             A
Concise Statement of Matters Complained Of was filed, though not served on the judge, on
                                                                                         May
18, 2017. In his Statement, the Defendant raises two claims:

               1.   The tower court erred when it found beyond a reasonable doubt that the
                    Defendant had been incapable of safe driving[;] and

               2.   The trial court erred when it found the Defendant Guilty as there was not
                    enough evidence to convict the Defendant on the charge of Driving Under the
                    Influence.


It appears the Defendant is asserting there was insufficient evidence upon which to convict and

that the verdict was against the weight of the evidence.




                                                                                                         1




                                                  0
        The Supreme Court of Pennsylvania addressed the standard of review for a sufficiency of

 the evidence challenge as follows:


                 When reviewing a challenge to the sufficiency of the evidence, we must
                 determine if the Commonwealth established beyond a reasonable doubt each of
                the elements of the offense, considering the entire trial record and all of the
                evidence received, and drawing all reasonable inferences from the evidence in
                favor of the Commonwealth as the verdict-winner. Commonwealth v. Pruitt, 597
                Pa. 307, 951 A.2d 307, 313 (2008). The Commonwealth may sustain its
                                                                                            burden of
                proof by wholly circumstantial evidence. Commonwealth v. Kennedy, 598 Pa.
                621, 959 A.2d 916, 921 (2008), cert. denied, 129 S. Ct. 2433, 174 L. Ed. 2d
                                                                                                229
                (2009).

Commonwealth     v.   Segida, 985 A.2d 871, 880 (Pa. 2009). The Supreme Court addressed weight

of the evidence challenges thusly:

               The weight of the evidence is exclusively for the finder of fact who is free to
               believe all, part, or none of the evidence and to determine the credibility of the
               witnesses. Commonwealth v. Johnson, 542 Pa. 384, 394, 668 A.2d 97, 101
               (1995), cert. denied, 519 U.S. 827, 117 S.Ct. 90, 136 L.Ed.2d 46 (1996). An
               appellate court cannot substitute its judgment for that of the finder of fact.
               Commonwealth v. Pronkoskie, 498 Pa. 245, 251, 445 A.2d 1203, 1206 (1982).
               Thus, we may only reverse the lower court's verdict if it is so contrary to the
               evidence as to shock one's sense of justice. "673 Commonwealth v. Hawkins,
               549 Pa. 352, 368, 701 A.2d 492, 500 (1997), cert denied, 523 U.S. 1083, 118
               S.Ct. 1535, 140 L.Ed.2d 685 (1998).

Commonwealth    v.    Small, 741 A.2d 666, 672-73 (Pa. 1999). The Defendant challenges his

conviction for violating   §   3802(d)(2), which provides 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.
                                                                                                    2
          During the early evening of February 23, 2016,
                                                         Trooper Thomas Karlo of the
  Pennsylvania State Police was following the Defendant's tan
                                                              Chevrolet S-10 on State Route 28
  in Buffalo Township, Butler County. The
                                                 Trooper observed the Defendant change from the right
  to the left lane after activating his turn signal
                                                    briefly. He then observed the Defendant change
  from the left to the right travel lane. After
                                                 returning to the right travel lane, the Defendant's turn
  signal remained on for at least ten seconds. At
                                                      that point, the Trooper activated his overhead
 lights and conducted a traffic stop. Trooper Karlo had
                                                        more than three years of experience as a
 Pennsylvania State Police Trooper, had received standard field
                                                                sobriety test training, and had
 attended an advanced roadside impaired driving
                                                enforcement class.
         Trooper Karlo approached the passenger side of the
                                                            Defendant's truck and asked for the
 Defendant's documents and identification. As he did so he noticed
                                                                   that the Defendant was
 laughing. The Trooper observed two pill bottles inside
                                                        of the truck. He asked the Defendant
 what medications he was taking. The Defendant indicated
                                                         he was taking viibryd and

 clonazepam. The Defendant indicated that he had taken a
                                                         clonazepam before driving. The
 Trooper noticed that the Defendant's pupils were extremely
                                                            dilated. Based on his observations
and the Defendant's statements, Trooper Karlo requested
                                                        that the Defendant undergo field
sobriety testing. The Defendant agreed.

        The horizontal gaze nystagmus test, the one leg stand test, and
                                                                        the walk and mm test were
administered by Trooper Karlo. During the walk and turn test, the
                                                                  Defendant took eight instead
of the instructed nine steps. During the one leg stand test, the
                                                                 Defendant put his leg down
prematurely after he lost his balance. During the horizontal gaze nystagmus
                                                                            test, Trooper Karlo
noticed a tack of smooth pursuit, distinct nystagmus at maximum
                                                                deviation, and onset of
nystagmus prior to forty-five degrees. Trooper Karlo also noticed redness of the
                                                                                 Defendant's

                                                                                                     3
 conjunctiva. Based on his observations, the Trooper believed the Defendant had been
                                                                                     driving
 under the influence of a controlled substance. He thus placed the Defendant into
                                                                                  custody and
 requested a drug recognition expert. The Defendant was transported by the Trooper to
                                                                                      the
 Kittanning State Police Barracks.

        Once at the Kittanning Barracks, the Defendant agreed to undergo an
                                                                            evaluation by a
 drug recognition expert beginning at approximately 6:00 P.M. Corporal
                                                                       Christopher Robbins, the
 Patrol Unit Supervisor and a drug recognition expert, conducted the
                                                                     evaluation. Corporal
 Robbins observed that the Defendant had a red face, "thick" speech, a heart rate at the
                                                                                         high end
 of the normal range, and the Defendant appeared to be nervous. As part of the
                                                                               evaluation, the
 Corporal administered a horizontal gaze nystagmus test. He observed several
                                                                             indicators that the
Defendant was under the influence, including lack of smooth pursuit, distinct and
                                                                                  sustained
nystagmus, onset of nystagmus at approximately 30 degrees, which indicates the
                                                                               presence of
drugs, and a lack of convergence. Corporal Robbins then had the Defendant
                                                                          undergo a modified
Romberg balance test. During that test, the Defendant exhibited a 2" circular sway and eye

tremors. He also failed to maintain his position to within five seconds of the acceptable
                                                                                          time as
he was instructed. Prior to a walk and turn test, the Defendant was unable to keep
                                                                                   his balance
while instructions were being given. During the test, the Defendant took seven steps instead of

the requested nine, raised his arms, and made an improper turn. During a one leg stand
                                                                                       test, the
Defendant swayed, kept his foot lower than was directed, failed to count the number "10", and

switched feet. The Defendant failed to perform satisfactorily on a finger to nose test. The

Defendant's pupils were also observed to be excessively dilated in a dark room, and the

Defendant's pupils were abnormally slow to react. As part of the examination, the Defendant

admitted to having taken medication. Based on the examination performed by Corporal

                                                                                                    4
        Robbins, he opined that the Defendant was under the influence of a
                                                                           central nervous system
        depressant or depressants and was incapable of safely driving a vehicle.


                Based on the testimony of Trooper Karlo and Corporal Robbins, which
                                                                                    the Court found
        to be credible, there was sufficient evidence to find beyond a
                                                                       reasonable doubt that the
        Defendant drove his vehicle on a highway or roadway while 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 the vehicle. The Defendant
                                                                              admitted to taking
       medications for which he had prescriptions prior to driving. While driving, he was
                                                                                          observed by
       Trooper Karlo to switch lanes without, in the Trooper's opinion, signaling adequately.
                                                                                              He was
       observed by the Trooper to change lanes and keep his turn signal on for at least ten
                                                                                            seconds after
       doing so. Once stopped, the Defendant was observed by the Trooper to laugh
                                                                                  when he
       approached. He performed poorly on roadside standardized field sobriety testing and his eyes

       were observed to be dilated. Once taken to the Kittanning Barracks, the
                                                                               Defendant again
       performed poorly on standardized field sobriety testing and exhibited an inability to maintain his

       balance. Additionally, the Defendant was observed to be swaying in a circular motion
                                                                                            during the
       Romberg balance test, exhibited eye tremors, and failed to complete the test satisfactorily. It was

       not error to find the Defendant was incapable of safely driving or that he was guilty beyond a

       reasonable doubt of driving under the influence of a controlled substance. The verdict was not

       against the weight of the credible evidence presented at trial.


                                                             By the Court,




(ko,                                                             iam R. Shaffer, Judge
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