J-A22030-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    CHRISTOPHER RYAN TUCKER

                             Appellant               No. 3705 EDA 2016


           Appeal from the Judgment of Sentence November 3, 2016
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0004011-2015


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

MEMORANDUM BY LAZARUS, J.:                        FILED OCTOBER 24, 2017

        Christopher Ryan Tucker appeals from the judgment of sentence,

entered in the Court of Common Pleas of Lehigh County, following his

conviction for Driving Under the Influence (“DUI”): Controlled Substance –

Metabolite, 75 Pa.C.S.A. § 3802(d)(1)(iii). After review, we affirm.

        Tucker is a permanently disabled veteran; he admits to using cannabis

to self-medicate psychological issues that include schizoaffective disorder and

post-traumatic stress disorder. On June 30, 2015, Tucker awoke to severe

stomach pain at approximately 6:00 a.m. Shortly thereafter, Tucker smoked

a marijuana cigarette in an attempt to subside his stomach pain. When the

pain continued, Tucker determined it was necessary to drive to the hospital,


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A22030-17



but, concerned that the effects of the marijuana would impair his driving

ability, he did not leave his residence until 12:15 p.m.

       During Tucker’s drive to the hospital, Tucker felt a sharp pain in his

stomach, numbness and pain in his teeth, and a loss of feeling in his lower

extremities. Tucker’s symptoms quickly worsened, and he began experiencing

tunnel vision and he believed he was going to pass out. Tucker pulled his

vehicle over and called 911, during which he informed dispatch that he had

consumed four double shots of espresso and smoked marijuana approximately

three to four hours earlier. At approximately 12:30 p.m., Pennsylvania State

Trooper Sean Quigney was dispatched to assist Emergency Medical Services

(“EMS”) with a vehicle on the side of a roadway and a driver who was

potentially suffering a stroke.

       When Trooper Quigney arrived, he approached Tucker, who was sitting

in the rear of an ambulance.             During the course of Trooper Quigney’s

investigation, Tucker admitted to having smoked marijuana earlier in the

morning. Tucker was transported to the hospital, whereupon Trooper Quigley

requested that Tucker submit to a blood draw. Tucker’s blood was drawn and

tested positive for the presence of cannabis metabolites.

       On August 5, 2015, Tucker was charged with DUI: Controlled Substance

– Impaired Ability, DUI: Controlled Substance – Schedule I, DUI: Controlled

Substance – Metabolite, and careless driving.1 On January 6, 2016, Tucker
____________________________________________


175 Pa.C.S.A. § 3802(d)(2), 75 Pa.C.S.A. § 3802(d)(1)(i), 75 Pa.C.S.A. §
3802(d)(1)(iii), and 75 Pa.C.S.A. § 3741(a), respectively.

                                           -2-
J-A22030-17



filed an omnibus pretrial motion/petition for writ of habeas corpus challenging

the results of his toxicology report, the constitutionality of 75 Pa.C.S.A. §

3802(d)(iii), and the sufficiency of the evidence pertaining to the charge of

careless   driving.      Tucker   ultimately   withdrew   his   motion   and   the

Commonwealth agreed to withdraw all charges except DUI: Controlled

Substance – Metabolite. A bench trial was held on December 6, 2016, after

which Tucker was found guilty of DUI: Controlled Substance – Metabolite. On

November 3, 2016, the trial court sentenced Tucker to five years’ intermediate

punishment, 135 days of which he was to serve on house arrest.                 On

December 2, 2016, Tucker timely filed his notice of appeal; both Tucker and

the trial court have complied with Pa.R.A.P. 1925. Tucker raises the following

issues for our review:

      1. Whether 75 Pa.C.S.A. § 3802(d)(1)(ii) is unconstitutionally
      vague, overbroad and irrationally over-inclusive and, therefore,
      violates [Tucker’s] due process rights[?]

      2. Whether 75 Pa.C.S.A. § 3802(d)(1)(ii) violates [Tucker’s]
      rights under the Pennsylvania and Federal Equal Protection
      Clauses[?]

      3.   Whether the Commonwealth failed to prove beyond a
      reasonable doubt that [Tucker] was impaired while operating a
      motor vehicle in violation of 75 Pa.C.S.A. § 3802(d)(1)(iii).

Brief of Appellant, at 2.




                                       -3-
J-A22030-17



       Tucker first challenges the constitutionality of section 3802(d)(1),

asserting that it is vague, overbroad and irrationally over-inclusive, and thus,

violates his due process rights.2

       The constitutional validity of duly enacted legislation is presumed, and

a statute will only be declared unconstitutional if it clearly, palpably and plainly

violated the constitution. See Commonwealth v. Haughwout, 837 A.2d

480, 487 (Pa. Super. 2007). This court, in evaluating an assertion that a

statute is vague and overbroad, has set forth the following:

       As generally stated, the void for vagueness doctrine requires that
       a penal statute define the criminal offense with sufficient
       definiteness that ordinary people can understand what conduct is
       prohibited and in a manner that does not encourage arbitrary and
       discriminatory enforcement. A statute is void for vagueness if it
       fails to give a person of ordinary intelligence fair notice that his
       contemplated conduct is forbidden by the statute. Due process
       requirements are satisfied if the statute provides reasonable
       standards by which a person may gauge their future conduct.

       A statute is ‘overbroad’ if by its reach it punishes constitutionally
       protected activity as well as illegal activity.



____________________________________________


2 Although Tucker challenges the constitutionality of a statute, he need not
notify the Attorney General, as the Commonwealth is a party to this matter.
See 210 Pa. Code § 521 (“It shall be the duty of a party who draws in question
the constitutionality of any statute in any matter in an appellate court to which
the Commonwealth or any officer thereof, acting in his official capacity, is not
a party, upon the filing of the record, or as soon thereafter as the question is
raised in the appellate court, to give immediate notice in writing to the
Attorney General of Pennsylvania of the existence of the question; together
with a copy of the pleadings or other portion of the record raising the issue,
and to file proof of service of such notice.”)



                                           -4-
J-A22030-17



Commonwealth v. McCoy, 895 A.2d 18, 30 (Pa. Super. 2006). This Court

has already addressed constitutional challenges to section 3802(d)(1); it is

neither vague nor overbroad:

      There is no constitutional right to the use of marijuana prior to
      driving; indeed, under the Pennsylvania’s Controlled Substance,
      Drug, Device and Cosmetic Act, 35 P.S. § 780-101 et. seq., which
      has not been deemed unconstitutional, an individual is prohibited
      from any use of marijuana. Thus, [a]ppellant’s challenge to
      [Section 3802(d)(1)] must fail.

Commonwealth        v.   Etchison,   916      A.2d   1169   (Pa.   Super.   2007).

Accordingly, Tucker’s claim must also fail.

      Tucker next claims that section 3802(d)(1) violates his Pennsylvania

and Federal Equal Protection Rights.     When presented with a claim that a

statute violates the equal protection clause, where the case does not involve

a fundamental right or suspect class and does not involve an important right

or sensitive classification, our inquiry rests upon whether there exists a

rational basis for the classification. See Etchison, 916 A.2d at 1173. The

essence of the constitutional principle of equal protection under the law is that

like persons in like circumstances will be treated similarly; however, it does

not require that all persons under all circumstances enjoy identical protection

under the law. Id. at 1173-74. Further, the right to equal protection under

the law does not absolutely prohibit the Commonwealth from classifying

individuals for the purpose of receiving different treatment, and does not

require equal treatment of people having different needs; the prohibition

against treating people differently under the law does not preclude the


                                      -5-
J-A22030-17



Commonwealth from resorting to legislative classifications, provided that

those classifications are reasonable rather than arbitrary and bear reasonable

relationship to the object of the legislation. Id.

      The Etchison court also deemed section 3805(d)(1) not to violate equal

protection rights:

      We reject [a]ppellant’s assertion that [s]ection 3801(d)(1)
      violates equal protection, as there is no legislative classification
      upon which to base such an argument. As noted previously, a
      conviction under [s]ection 3802(d)(1) does not require that a
      driver be impaired; rather, it prohibits the operation of a motor
      vehicle by any driver who has any amount of specifically
      enumerated controlled substances in his blood, regardless of
      impairment. All drivers are treated the same. Accordingly, we
      find that [a]ppellant’s equal protection challenge lacks merit.

Id. at 1173-74 (emphasis in the original).           Here too, Tucker’s claim is

meritless.

      Finally, Tucker claims that the Commonwealth failed to prove beyond a

reasonable doubt that he was impaired while operating a motor vehicle.

Tucker’s claim challenges the sufficiency of the evidence.

      Our standard when reviewing the sufficiency of the evidence is
      whether the evidence at trial, and all reasonable inferences
      derived therefrom, when viewed in light most favorable to the
      Commonwealth as verdict-winner, are sufficient to establish all
      elements of the offense beyond a reasonable doubt. We may not
      weigh the evidence or substitute judgment for that of the fact-
      finder. Additionally, the evidence at trial need not preclude every
      possibility of innocence, and the fact-finder is free to resolve any
      doubts regarding a defendant’s guilt unless the evidence is so
      weak and inconclusive as a matter of law no probability of fact
      may be drawn from the combined circumstances.                  When
      evaluating the credibility and weight of the evidence, the fact-
      finder is free to believe all, part, or none of the evidence. For


                                      -6-
J-A22030-17


      purposes of our review under these principles, we must review the
      entire record and consider all of the evidence introduced.


Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014) (citation

omitted).

      An individual may not drive, operate or be in actual physical control of

the movement of a vehicle if there is in the individual’s blood any amount of

metabolite of a Schedule I controlled substance. 75 Pa.C.S.A. § 3802(d)(1)(i)

and (iii) (emphasis added). However, “[s]ection 3802(d)(1) does not require

that a driver be impaired; rather, it prohibits the operation of a motor vehicle

by any driver who has any amount of specifically enumerated controlled

substances in his blood, regardless of impairment.” Etchison, 916 A.2d at

1174 (emphasis in the original).

      Instantly, Tucker does not dispute that the evidence was sufficient to

prove the elements of his crime, and he concedes that impairment is not

presently an element of DUI: Controlled Substance – Metabolite.         Rather,

Tucker argues that section 3802(d)(1)(iii), as interpreted, is unconstitutional

and that the Commonwealth should be required to prove impairment when

prosecuting under section 3802(d)(1)(iii). Tucker further argues that if we

read section 3802(d)(1)(iii) as requiring the Commonwealth to prove

impairment, and being that the Commonwealth has not shown Tucker was

impaired while driving on June 30, 2015, the Commonwealth, ergo, has not

sufficiently proven Tucker’s guilt. Tucker’s specious and convoluted argument

is meritless.


                                     -7-
J-A22030-17



       As the Etchison court established, and as Tucker concedes, impairment

is not an element of section 3802(d)(1)(iii). Tucker admitted to both police

dispatch and Trooper Quigney that he smoked marijuana prior to attempting

to drive himself to the hospital; his admissions were duly corroborated by his

blood test results.3 Etchison, supra. Therefore, Tucker’s sufficiency claim

fails. Trinidad, supra.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/24/2017


____________________________________________


3 We note that the record is vague as to the issue of whether Tucker’s consent
was voluntary. At trial, Trooper Quigney merely stated that “at the hospital I
requested that [Tucker] submit to a blood draw.” N.T. Bench Trial, 9/6/16, at
7. The Commonwealth did not solicit any further testimony regarding the
circumstance under which Tucker complied with Trooper Quigney’s request.
However, there is no evidence in the record that (1) Trooper Quigney or law
enforcement provided Tucker with incorrect information that refusal to submit
to a blood draw would result in enhanced penalties; (2) Tucker was
administered and signed a DL-26 form; or (3) Tucker did not voluntarily
consent to the blood draw. Therefore, although under certain circumstances
we may raise the issue of voluntary consent sua sponte, we may not do so
here. Cf. Commonwealth v. Evans, 153 A.3d 323 (Pa. Super. 2016) (driver
could not be deemed to have consented to warrantless blood draw as
exception to the requirement for a search warrant; defendant only consented
to a blood draw after being incorrectly informed by police that refusal to
submit to the test could result in enhanced criminal penalties).

                                           -8-
