J-A01001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES M. MERVIN                          :
                                               :
                       Appellant               :   No. 989 EDA 2018

             Appeal from the Judgment of Sentence March 1, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010769-2017


BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.:                                     FILED MAY 07, 2019

        Charles M. Mervin appeals from the judgment of sentence imposed on

March 1, 2018, following a bench trial, in the Court of Common Pleas of

Philadelphia County. Mervin was convicted of one count of DUI: Controlled

Substance (marijuana) – Impaired Ability.1 He was sentenced to a term of 72

to 144 hours’ incarceration, with immediate parole after 72 hours. In this

timely appeal, Mervin argues there was insufficient evidence to support his

conviction. After a thorough review of the submissions by the parties, relevant

law, the certified record, we affirm.

        The standard of review for claims of insufficient evidence is well-
        settled. With respect to such claims, we consider the evidence in
        the light most favorable to the Commonwealth as verdict winner.
        Commonwealth v. Barnes, 871 A.2d 812, 819 A.2d Super.
        2005). In that light, we decide if the evidence and all reasonable
        inferences from that evidence are sufficient to establish the
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1   75 Pa.C.S. § 3802(d)(2).
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      elements of the offense beyond a reasonable doubt. Id. We keep
      in mind that it was for the trier of fact to determine the weight of
      the evidence and the credibility of witnesses. Id. The jury was
      free to believe all, part or none of the evidence. Id. This Court
      may not weigh the evidence or substitute its judgment or that of
      the factfinder. Id.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

      We recite the facts underlying this matter as related in the trial

court opinion.

            On December 31, 2016, at approximately 12:03 am,
      Trooper Baines, Badge #13099, of the Pennsylvania State Police
      was on routine patrol in a marked Ford Taurus on Interstate 76
      Eastbound at the intersection of Interstate 676 Eastbound with his
      partner, Trooper Tray. Trooper Baines had been on the force
      approximately two months but Trooper Tray was a far more
      experienced officer, having been a trooper for over a decade as of
      December 31, 2016. At that date, time, and location, Trooper
      Baines observed Mr. Charles Mervin in a black Dodge Dart,
      registration number JYE8566, traveling eastbound on I-76 to I-
      676 East.

         Troopers Baines and Tray were alerted to [Mervin] when they
      observed

         The vehicle driving aggressive. He was tailgating the vehicle
         in front of him…There was maybe not even a car’s length in
         front of his vehicle. He was on – almost directly behind the
         vehicle ahead of his…while he was driving within his lane,
         he was weaving kind of, not driving straight, but side-to-
         side.

      Additionally, using a police vehicle speedometer, Trooper Baines
      clocked [Mervin] traveling “at 70 miles per hour in a 50 miles per
      hour zone.”

            After observing [Mervin’s] driving for at least one-half mile,
      Trooper Baines activated his “emergency lights and sirens.” “The
      vehicle came to stop on the left travel lane. [Trooper Tray] had
      to exit the vehicle and advise the operator to move to the right
      shoulder which he complied.” Trooper Baines described that

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     stretch of road as “So it’s about three lanes, and there is a right
     shoulder right where Broad Street exit is,” and [Mervin] pulled
     over to “the left lane, directly next to the wall separating the east
     and westbound lanes,” where he was blocking other traveling
     cars.

           Once [Mervin] pulled over to the shoulder, Trooper Baines
     “approached the driver’s side. [He] advised the operator for the
     reason for the stop. And while during the interaction, [he]
     observed a strong odor of burnt marijuana emanating from the
     vehicle.” Trooper Baines was familiar with the odor of both burnt
     and raw marijuana through training at the State Police Academy.
     Trooper Baines “was at the driver’s side door leaning down directly
     face-to-face with the operator” when he observed that [Mervin’s]
     “eyes were glassy and bloodshot, during our interactions he was
     laughing and giggling…” He also seemed to have difficulty
     obtaining his driver’s license…registration and insurance cards…He
     was fumbling through his wallet, unsure where to find them, and
     just not coherent in obtaining them.” [Mervin] stated that he “had
     smoked marijuana 30 minutes prior…to the traffic stop.”

            Once [Mervin] located all of his documents, Trooper Baines
     asked [Mervin] to exit his vehicle and administered field sobriety
     tests, in accordance with his training.            Trooper Baines
     administered the “horizontal gaze nystagmus test, walk and turn,
     and the one leg stand.” Prior to each test, Trooper Baines asked
     [Mervin] if he had any medical conditions which would impair his
     ability to successfully complete the test. During the walk and turn
     test, [Mervin] indicated six out of eight clues of intoxication.
     “During the walking phase, he stopped walking, he missed heel-
     to-toe, he stepped off the line, and he also took an incorrect
     number of steps during his first nine steps. And also did an
     improper turn to take his nine back.” During the one leg stand,
     [Mervin] indicated four out of four clues of intoxication. “He
     hopped, he was swaying during the test, he raised his arms, and
     he put his foot down as well prior to the end of the 30-seconds.
     Based upon his observations of [Mervin] prior to and during the
     field sobriety tests administered, Trooper Baines formed the
     opinion that [Mervin] “was unfit to operate a motor vehicle due to
     the use of marijuana.” No blood evidence was admitted, and no
     Drug Recognitions Expert was enlisted to further observe and
     administer additional field tests on [Mervin].




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Trial Court Opinion, 5/22/2018, at 1-3 (citations to notes of testimony

omitted).

        Mervin now asserts the trial court convicted him based upon the “smell

of marijuana made by a Trooper who is not a trained Drug Recognition

Evaluator, no blood test results and an individual who was stopped for

travelling approximately ten miles over the posted speed limit[.]” Mervin’s

Brief at 7-8.    To support this allegation, Mervin cites Commonwealth v.

DiPanfilo, 993 A.2d 1262 (Pa. Super 2010), for the proposition that a

conviction for marijuana-related DUI must be supported by expert testimony.

All parties and the trial court agree that no such expert testimony was

produced.     Therefore, Mervin claims, his conviction was not supported by

sufficient evidence. This argument is without merit.

        Initially, we note the trial court cites far more evidence than that which

Mervin recounts.      In reviewing this claim, we are required to examine the

evidence in the light most favorable to the Commonwealth, as verdict winner,

not, as Mervin would have, in the light most favorable to him.             Evidence

showed Mervin was travelling approximately 20 miles over the posted speed

limit, not ten.2 Mervin admitted to having smoked marijuana 30 minutes prior

to the traffic stop. Trooper Baines was met with a strong odor of marijuana

when he approached Mervin’s car.               Mervin was weaving within his lane of


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2   Trooper Baines testified Mervin was travelling 70 mph in a 50 mph zone.

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travel, unable to keep his vehicle in a straight path. At 70 miles per hour,

Mervin was tailgating the car in front of him.       When pulled over, Mervin

stopped his car in a travel lane rather than pulling over to the shoulder of the

road; he had to be told to move the car to the safer location. Trooper Baines

observed Mervin had glassy and bloodshot eyes. Mervin had trouble finding

his driver’s license, registration, and insurance card and was laughing and

giggling through the efforts. Mervin failed all of the field sobriety tests he was

asked to perform. This is significantly more evidence than Mervin would have

us believe was presented.

       Additionally, DiPanfilo does not require expert testimony in all

circumstances involving DUI-marijuana. Rather, DiPanfilo states:

       We acknowledge that [Commonwealth v.] Etchison, [916 A.2d
       1169 (Pa. Super. 2007)] recognized a need for expert testimony
       in the area of marijuana, a commonly-known drug like cocaine
       and alcohol. However, we do not read Etchison as requiring
       expert testimony in every marijuana case,FN or (as Appellant
       seems to suggest) every illegal-drug case.
           FN. For example, if a police officer stopped a driver who
           was driving erratically, and the driver then rolled down his
           window and greeted the officer through a cloud of
           marijuana smoke, showing the typical signs of heavy
           marijuana use, it would be difficult to imagine it would be
           necessary to establish the link between the erratic driving
           and the driver’s marijuana use.
Commonwealth v. DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010).3


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3We note Etchison is also distinguishable from the instant matter in that the
only evidence of marijuana use there was a blood test demonstrating 53



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       Our review of the certified record leads to the inescapable conclusion

that the instant factual situation virtually mirrors the example given in

DiPanfilo for the circumstance where no expert testimony is required. We

agree with the reasoning of DiPanfilo that there are some circumstances

where lay observations, especially those observations by a trained police

officer4, provide sufficient information to conclude the erratic driving was

linked to the marijuana usage.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/7/19




____________________________________________


nanograms of metabolites of cannabinoids. As the concurring and dissenting
opinion of Judge John T. Bender noted, the Commonwealth presented no
evidence of recent use – including no odor of marijuana and no “damning
admission” of recent use, Etchison, supra at 1175, both of which are present
instantly.

4While Trooper Baines was not a trained Drug Recognition Evaluator, he was
generally trained to detect signs of intoxication and the inability to safely
operate a motor vehicle, as well as the indicia of marijuana use.

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