J-S48019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA L. LIVELY                           :
                                               :
                       Appellant               :   No. 1643 EDA 2017

             Appeal from the Judgment of Sentence April 18, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003378-2016

BEFORE:       DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 12, 2018

       Joshua L. Lively (Appellant) appeals from the judgment of sentence

imposed after he was convicted of driving under the influence of a controlled

substance (DUI) – impaired ability and possession of marijuana.1 We affirm.

       The trial court summarized the facts and procedural history of this case

as follows:

       Police Officer Shawn Devlin testified that on September 22, 2014,
       at approximately 9:39 p.m., he and his partner, Officer Santos
       (first name not given), were on routine patrol traveling in the area
       of 52nd and Jefferson Streets when he observed [Appellant]
       operating a gray Nissan [A]ltima with Massachusetts license
       plates, run a red light. Officer Devlin immediately activated lights
       and sirens, but [Appellant] did not pull over. Instead, [Appellant]
       pulled into a shopping center east of 52nd Street; he did not pull
       over at the first available opportunity, he continued to drive
       through the parking lot and parked in a parking spot in front of
       the Monster Pet store. Officer Devlin did not believe he was
       attempting to flee; he was just not reacting to the police car
____________________________________________


1   75 Pa.C.S.A. § 3802(d)(2); 35 P.S. § 780-113(a)(31).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      behind him. (N.T.[,] 3/2/17, [at] 13-17). When [Appellant]
      eventually pulled over, Officer Devlin exited his vehicle and stated
      he could smell a strong odor of marijuana; the smell was
      incredibly strong the closer he got to the [A]ltima. [Appellant]
      was the only person in the car[. Id. at 17-18.]

                                 *      *     *

          [Appellant] testified that while he did smoke (marijuana)
      earlier that morning, he did not smoke any marijuana in the car.
      He stated that the officer never asked him if he had been smoking.
      He denied running the red light and stated that as soon as the
      light turned green, the officer put on his flashing lights; that he
      pulled over as soon as he could safely do so. ([Id.] at 59-61).

Trial Court Opinion, 11/3/17, at 2-4.

         [Appellant] was arrested and [] charged with inter alia, DUI,
      Controlled Substance – Impaired Ability – 1st Offense, and
      Possession of Marijuana[.]

                                 *      *     *

         [F]ollowing a waiver trial, [Appellant] was found guilty of both
      charges. . . . On April 18, 2017, [Appellant] was sentenced to a
      mandatory minimum sentence of seventy-two (72) hours to six
      (6) months of incarceration. [Appellant] was also ordered to pay
      a One Thousand ($1,000.00) Dollar fine, attend Alcohol Highway
      Safety School, and a twelve (12) month license suspension. No
      further sentence was imposed on the conviction for possession of
      marijuana. [Appellant] filed a Notice of Appeal to the Superior
      Court. Following the receipt of the notes of testimony and
      retaining new counsel, a Statement of Matters Complained of on
      Appeal pursuant to Pa.R.A.P. 1925(b) was ordered. A Statement
      of Matters Complained of on Appeal was filed on September 14,
      2017.

Id. at 1-2 (footnote omitted).

      On appeal, Appellant presents the following issue for review: “Did not

the lower court err in finding Appellant guilty of driving under the influence of

controlled substances under 75 Pa.C.S.[A.] § 3802(d)(2) where the evidence

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was insufficient to establish that his ability to drive safely was impaired?”

Appellant’s Brief at 3.2 Specifically, Appellant argues that a conviction under

Section 3802(d)(2) requires proof of erratic driving demonstrating the inability

to drive safely. Appellant asserts that “[m]ere proof that an individual has

consumed intoxicating substances is insufficient to establish guilt under

[Section] 3802(d)(2).” Appellant’s Brief at 10. Appellant maintains that the

Commonwealth did not present evidence of his inability to drive safely.

       In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

          As a general matter, our standard of review of sufficiency
       claims requires that we evaluate the record in the light most
       favorable to the verdict winner giving the prosecution the benefit
       of all reasonable inferences to be drawn from the evidence.
       Evidence will be deemed sufficient to support the verdict when it
       establishes each material element of the crime charged and the
       commission thereof by the accused, beyond a reasonable doubt.
       Nevertheless, the Commonwealth need not establish guilt to a
       mathematical certainty. Any doubt about the defendant’s guilt is
       to be resolved by the fact finder unless the evidence is so weak
       and inconclusive that, as a matter of law, no probability of fact
       can be drawn from the combined circumstances.

           The Commonwealth may sustain its burden by means of wholly
       circumstantial evidence. Accordingly, [t]he fact that the evidence
       establishing a defendant’s participation in a crime is circumstantial
       does not preclude a conviction where the evidence coupled with
       the reasonable inferences drawn therefrom overcomes the
       presumption of innocence. Significantly, we may not substitute
       our judgment for that of the fact finder; thus, so long as the
       evidence adduced, accepted in the light most favorable to the
       Commonwealth, demonstrates the respective elements of a
____________________________________________


2 Appellant raised three additional issues in his Rule 1925(b) statement that
he has abandoned on appeal.

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      defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted).       “Further, the trier of fact, in

passing upon the credibility of the witnesses, is free to believe all, part, or

none of the evidence.” Commonwealth v. Rivera, 983 A.2d 1211, 1220

(Pa. 2009) (quotations and citations omitted).

      The trial court summarized the applicable law and Officer’s Devlin’s

testimony as follows:

         [Appellant] challenges the sufficiency of the evidence for his
      conviction under 75 Pa.C.S.A. § 3802(d)(2). Pursuant to that
      statute:

            (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). The Superior Court has emphasized
      that “Section 3802(d)(2) does not require that any amount or
      specific quantity of the drug be proven in order to successfully
      prosecute under that section.” Commonwealth v. Williamson,
      962 A.2d 1200, 1204 (Pa. Super. 2008) (emphasis in original).
      Rather, the Commonwealth must simply prove that, while driving
      or operating a vehicle, the accused was under the influence of a
      drug to a degree that impaired his or her ability to safely drive
      that vehicle. Id.



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          In this matter, Officer Devlin testified that when [Appellant]
      eventually pulled over, he could smell an incredibly strong odor of
      marijuana the closer he got to the vehicle [Appellant] was driving.
      [Appellant] was the only person in the car and Officer Devlin
      described him as having watery, glassy, somewhat bloodshot
      eyes; he fumbled with his paperwork, and his speech was slow,
      drawn out, and somewhat mumbled. Also, a blunt of a marijuana
      cigar was recovered from the floorboard between the driver’s seat
      and center console. Officer Devlin believed [Appellant] was DUI
      based on what he smelled and what he observed. Moreover,
      [Appellant] stated that he had smoked marijuana about two (2)
      hours prior to being pulled over. Additionally, Officer Farrell
      testified that he observed [Appellant] to have glassy eyes, and
      slow, lethargic movement, speech and walk. According to Officer
      Farrell, his observations of [Appellant] were consistent with
      someone who [was] under the influence of marijuana.
      Considering the totality of the above circumstances, viewed in the
      light most favorable to the Commonwealth, there was sufficient
      evidence to establish that [Appellant] was unable to safely operate
      his vehicle due to the influence of marijuana.

Trial Court Opinion, 11/3/17, at 5-7.

      Based on our review of the certified record on appeal, including the

transcripts of Appellant’s bench trial, we conclude that the trial court has

accurately described the facts and circumstances surrounding Appellant’s

arrest. See N.T., 3/2/17, at 13-19, 43-44, 64. We agree that the evidence

was sufficient to sustain Appellant’s conviction under Section 3802(d)(2). The

record reflects that Appellant’s physical condition at the time of his arrest was

indicative of someone who was under the influence of marijuana to a degree

that impaired his ability to safely operate his vehicle.

      With respect to Appellant’s claim that a conviction under Section

3802(d)(2) requires the Commonwealth to present evidence that he was




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driving erratically or in an unsafe manner and the Commonwealth did not do

so, this argument does not warrant relief.

      In support of this claim, Appellant relies on Commonwealth v. Gause,

164 A.3d 532 (Pa. Super. 2017). Gause, however, does not, as Appellant

claims, stand for the proposition that the Commonwealth must present

evidence of erratic or dangerous driving in order to support a conviction under

Section 3802(d)(2).      Rather, in Gause, this Court addressed the issue of

whether expert testimony was needed to determine if a suspect exhibiting

“eyelid tremors” indicated that the individual was under the influence of

marijuana and could not safely operate a vehicle.          This Court stated that

“eyelid tremors” were “not the typical and obvious indicia of marijuana use.”

Id. at 539. Consequently, we held that expert testimony was necessary “to

explain whether ‘eye tremors,’ or ‘body tremors,’ would indicate that someone

was under the influence of marijuana and that this impaired his ability to safely

drive, in violation of [S]ection 3802(d)(2).”        Id.     “Unlike staggering,

stumbling, glassy or bloodshot eyes, and slurred speech, the ‘ordinary signs

of intoxication discernable by a layperson,’ eye tremors are not an ordinary

sign of ingestion of a controlled substance, in particular, marijuana.”      Id.

(italics in original).

      In this case, the record reflects that two police officers observed

Appellant with watery, glassy, and bloodshot eyes, and noticed that his

movements and speech were slow and lethargic. N.T., 3/2/17, at 13-19, 43-


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44. One of the officers also reported that Appellant fumbled his paperwork.

Id. at 18.   Accordingly, the evidence was sufficient to sustain Appellant’s

conviction under Section 3802(d)(2).      We emphasize, to the extent the

Commonwealth was even required to present evidence that Appellant was

driving erratically or in an unsafe manner, the record reveals that the reason

the police stopped Appellant’s vehicle was because he ran a red light at an

intersection. Id. at 14.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/18




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