J-S01003-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SANDRA L. HOHENWARTER,                     :
                                               :
                      Appellant                :      No. 1111 MDA 2017

             Appeal from the Judgment of Sentence June 16, 2017
              in the Court of Common Pleas of Lancaster County,
             Criminal Division at No(s): CP-36-CR-0005208-2016

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 15, 2018

        Sandra L. Hohenwarter (“Hohenwarter”) appeals from the judgment of

sentence imposed following her convictions of driving under the influence of

a controlled substance (“DUI”), operating a vehicle without a valid inspection

sticker, and operating a vehicle without evidence of emission inspection. 1

We affirm.

        On June 28, 2016, Pennsylvania             State Trooper Adam Shutter

(“Trooper Shutter”) was on traffic enforcement duty, in a marked patrol car,

on Route 462 in East Lampeter Township.             At approximately 1:09 p.m.,

Trooper Shutter observed a red Chevrolet Camaro, traveling eastbound, with

expired inspection stickers.        When the Camaro had passed his location,

Trooper Shutter made a U-turn to pursue the vehicle.

____________________________________________


1   75 Pa.C.S.A. §§ 3802(d)(2), 4703(a), 4706(c)(5).
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     Trooper Shutter caught up with the vehicle in the area of Greenfield

Road and Route 340 and initiated a traffic stop. Trooper Shutter informed

the driver, Hohenwarter, that he had pulled her over for an inspection

violation, and requested her license, registration and proof of insurance.

According to Trooper Shutter, it took Hohenwarter more time to gather her

information than it would for an average person during a non-DUI vehicle

stop, and Hohenwarter had difficulty locating her license, even though it was

visible in her wallet. Trooper Shutter also noticed that Hohenwarter’s pupils

were “extremely constricted,” her speech was slurred, and she exhibited

delayed reactions.   Trooper Shutter asked Hohenwarter whether she had

taken any kind of medication, and she replied that she was on Adderall and

Metformin. Trooper Shutter then asked Hohenwarter whether she had taken

any narcotics, and she replied that she has a prescription for oxycodone to

manage pain, and that she had taken some the previous evening.

     Based on his observations, Trooper Shutter asked Hohenwarter to exit

the vehicle and submit to field sobriety tests.   Hohenwarter indicated that

she had a back or leg issue, but she agreed to perform the tests. According

to Trooper Shutter, Hohenwarter’s performance on each of the tests showed

signs of impairment. Trooper Shutter placed Hohenwarter under arrest for

suspicion of DUI, and transported Hohenwarter to the police station for an

evaluation by Trooper Stephanie Schiavoni (“Trooper Schiavoni”), a drug

recognition expert (“DRE”).




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      Trooper Schiavoni evaluated Hohenwarter using the DRE program’s

12-step standardized process.           Based on her observations,           Trooper

Schiavoni concluded that Hohenwarter was likely under the influence of a

central nervous system depressant and a narcotic analgesic.             Additionally,

Trooper   Schiavoni   informed       Trooper   Shutter   that,    in   her   opinion,

Hohenwarter was “incapable of safe driving due to those two drug

categories.” Trooper Shiavoni recommended that Hohenwarter be taken to

the hospital for chemical testing.

      Trooper   Shutter   transported     Hohenwarter     to     Lancaster   General

Hospital for a blood test.   Trooper Shutter read Hohenwarter the implied

consent warnings, as contained in the revised Pennsylvania State Police DL-




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26 form.2 Hohenwarter signed the DL-26 form to indicate that she had been

advised of the implied consent warnings, and consented to chemical testing.

       Hohenwarter’s blood was drawn at the hospital and submitted to NMS

Labs for testing.         The toxicology report indicated the presence of

amphetamine, oxycodone, and citalopram.          The concentration of each

substance was within the therapeutic range.

       Following a bench trial, Hohenwarter was convicted of the above-

mentioned offenses. The trial court deferred sentencing, pending a drug and

alcohol evaluation and a Court Reporting Network evaluation. The trial court

sentenced Hohenwarter to 6 months of intermediate punishment, with the

first two weeks to be spent on house arrest; ordered her to pay the
____________________________________________


2 Notably to the instant appeal, the DL-26 form that Trooper Shutter read to
Hohenwarter was the new version, which had been revised in response to
the decision of the United States Supreme Court in Birchfield v. North
Dakota, 136 S. Ct. 2160 (2016). In Birchfield, the Supreme Court
concluded that “a breath test, but not a blood test, may be administered as
a search incident to a lawful arrest for drunk driving.” Id. at 2185.
Additionally, the Supreme Court held that blood tests taken pursuant to
implied consent laws are an unconstitutional invasion of privacy. Id. at
2186. The Supreme Court stated that “motorists cannot be deemed to have
consented to submit to a blood test on pain of committing a criminal
offense.” Id. Here, the parties agreed during the bench trial that the
instant case does not present a Birchfield issue, as Trooper Shutter read
Hohenwarter the implied consent warnings contained in the revised, post-
Birchfield DL-26 form. See N.T., 5/10/17, at 4 (wherein Hohenwarter’s
defense attorney agreed that Birchfield is not applicable to the instant case,
and acknowledged that Trooper Shutter used the updated DL-26 form); see
also id. at 36 (wherein Trooper Shutter testified that he read Hohenwarter
the implied consent warnings contained in “the DL-26 form, which was
amended”).




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mandatory fine of $1,000, plus costs; and suspended her driving privileges

for 12 months.

        Hohenwarter filed a timely Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

        On appeal, Hohenwarter raises the following issue for our review:

        Did the [] trial court err as a matter of law in finding there was
        sufficient evidence to convict [Hohenwarter] of [DUI,] when the
        Commonwealth failed to produce sufficient evidence as to each
        material element of the offense charged and the commission
        thereof by [Hohenwarter] beyond a reasonable doubt?

Brief for Appellant at 5 (some capitalization omitted).3

               The standard we apply in reviewing the sufficiency of the
        evidence is whether[,] viewing all the evidence admitted at trial
        in the light most favorable to the verdict winner, there is
        sufficient evidence to enable the fact-finder to find every
        element of the crime beyond a reasonable doubt. In applying
        the above test, we may not weigh the evidence and substitute
        our prior judgment for the fact-finder. In addition, we note that
        the facts and circumstances established by the Commonwealth
        need not preclude every possibility of innocence. Any doubts
        regarding a defendant’s guilt may be resolved by the fact-finder
        unless the evidence is so weak and inconclusive that as a matter
        of law no probability of fact may be drawn from the combined
        circumstances. The Commonwealth may sustain its burden of
        proving every element of the crime beyond a reasonable doubt
        by means of wholly circumstantial evidence.           Moreover, in
        applying the above test, the entire record must be evaluated and
        all evidence actually received must be considered. Finally, the
        finder of fact, while passing upon the credibility of witnesses and
        the weight of the evidence produced[,] is free to believe all, part
        or none of the evidence.

____________________________________________


3   The Commonwealth did not file a brief.



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Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)

(citation omitted).

      Hohenwarter claims that there was insufficient evidence to support her

conviction of DUI under 75 Pa.C.S.A. § 3802(d)(2).         Brief for Appellant at

10.   Specifically, Hohenwarter argues that the Commonwealth failed to

produce sufficient evidence that her ability to drive safely was impaired. Id.

at 11, 12-13. Hohenwarter points out that all of the drugs in her system on

the day of her arrest were prescription medications. Id. at 13. Additionally,

Hohenwarter asserts that Trooper Shutter did not observe her driving

erratically.    Id. at 13, 16-17.       Hohenwarter attributes the indicia of

intoxication (i.e., slurred speech, delay in producing documentation, and her

performance on field sobriety tests) to “innocuous factors,” such as her

missing partial denture, the presence of her dog in her vehicle, and pain

from her underlying medical conditions. Id. at 13-16, 17.

      Section 3802 of the Vehicle Code provides, in relevant part, 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.

75 Pa.C.S.A. § 3802(d)(2). Further, “[t]his section does not require proof of

a specific amount of a drug in the driver’s system.        It requires only proof


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that the driver was under the influence of a drug or combination of drugs to

a degree that the ability to drive is impaired.” Commonwealth v. Tarrach,

42 A.3d 342, 345 (Pa. Super. 2012).

     During the bench trial, Trooper Shutter testified that on June 28, 2016,

he was on traffic enforcement duty in East Lampeter Township. See N.T.,

5/10/17, 11-12. Trooper Shutter’s marked patrol vehicle was located in the

center turn lane of Route 462, facing westbound. See id. at 12. Trooper

Shutter testified that at approximately 1:09 p.m., he observed a red

Chevrolet Camaro with an expired inspection sticker traveling eastbound on

Route 462.    See id. at 12-13. After the vehicle had passed him, Trooper

Shutter made a U-turn and pursued the Camaro. See id. at 13.

     Trooper Shutter testified that he caught up to the Camaro in the area

of Greenfield Road and Route 340 and initiated a traffic stop. See id. at 13-

14. Trooper Shutter stated that he approached the driver of the Camaro,

Hohenwarter; explained that he had pulled her over for an inspection

violation; and requested her license, registration and proof of insurance.

See id. at 14. According to Trooper Shutter, “compared to … [] his normal

traffic stop for a person that is not under the influence, it took

[Hohenwarter] more time to gather the information, which was readily

visible from where [he] was standing[.]” Id. at 16; see also id. (wherein

Trooper Shutter explained that he was able to read the address on

Hohenwarter’s driver’s license while it was in her wallet, but that

Hohenwarter “just kind of missed it,” and had to look through her wallet a

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few times before retrieving her license). Trooper Shutter, who has received

training and certification in Advanced Roadside Impaired Drug Enforcement

(“ARIDE”), noted that Hohenwarter’s eyes were “extremely constricted,” her

speech was slurred, and she exhibited delayed reactions. See id. at 7, 17-

18. Additionally, Trooper Shutter stated that he did not smell alcohol. See

id. at 18.     Trooper Shutter asked Hohenwarter if she was on any

medications, and Hohenwarter replied that she was on Adderall and

Metformin. See id. Trooper Shutter then asked Hohenwarter whether she

was on any kind of narcotic. See id. at 19. Hohenwarter stated that she

has a prescription for oxycodone, and that she had taken some the previous

evening. See id.

      Based on his observations, Trooper Shutter asked Hohenwarter to exit

her vehicle in order to perform field sobriety tests.        See id. at 20.

Hohenwarter agreed to perform the tests, and indicated that she had pain

from a sciatic nerve. See id. at 22, 46; see also id. at 22 (wherein Trooper

Shutter testified that he had taken her medical issues into consideration with

respect to Hohenwarter’s performance). Trooper Shutter testified that when

Hohenwarter performed the walk-and-turn test, she exhibited four out of the

eight clues that indicate impairment, i.e., taking too many steps, turning in

the wrong direction or in the wrong manner, placing her feet side by side

rather than heel to toe, and raising her arms. See id. at 24; see also id.

(wherein Trooper Shutter stated that an individual must typically display two

of the clues in order to indicate impairment). Trooper Shutter also testified

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that Hohenwarter exhibited three out of the four clues that indicate

impairment when she performed the one-leg-stand test, i.e., dropping her

raised foot, swaying, and raising her arms. See id. at 27-28; see also id.

at 27 (wherein Trooper Shutter specified that an individual must display two

of the clues in order to indicate impairment); id. at 28 (wherein Trooper

Shutter testified that when Hohenwarter indicated that she was in pain when

she attempted the test, he allowed her to restart the test using her opposite

leg).   Based on his ARIDE training, Trooper Shutter also administered the

Romberg balance test, which may be used to indicate impairment from drug

use.    See id. at 28-29.   Trooper Shutter observed eyelid and leg tremors

when Hohenwarter performed the Romberg balance test, which can indicate

the use of a stimulant or depressant. See id. at 29-30. The field sobriety

tests were recorded with the in-car camera, and the video was admitted into

evidence at trial.   See id. at 31 (wherein the trial court admitted into

evidence the recording of Hohenwarter’s field sobriety tests).     Based on

Hohenwarter’s performance on the field sobriety tests, Trooper Shutter

placed Hohenwarter under arrest for suspicion of DUI, and requested that a

DRE respond to the police station to conduct additional testing. See id. at

35.

        Trooper Schiavoni, the DRE who conducted Hohenwarter’s drug

evaluation, testified that the DRE program uses a 12-step standardized

process to determine whether an individual is impaired, whether the

impairment is related to a drug, and which of seven drug categories caused

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the impairment. See id. at 58-59. Trooper Schiavoni testified that before

starting her preliminary examination, she informed Hohenwarter of her

Miranda4 rights and reviewed the waiver of rights form with Hohenwarter.

See id. at 76-77. Hohenwarter signed the waiver of rights form and agreed

to proceed with the evaluation.           See id. at 78.   During the preliminary

examination, Hohenwarter told Trooper Schiavoni that she takes Metformin,

Adderall, Xanax and Celexa (citalopram) daily. See id. at 83. Hohenwarter

also admitted that she had taken oxycodone at approximately 11:00 a.m.

See id.

        Trooper Schiavoni testified that Hohenwarter’s eye evaluation showed

a lack of convergence when trying to follow a moving object. See id. at 90.

Trooper Schiavoni testified that, during the modified Romberg balance test,

Hohenwarter “estimated 20 seconds as 30 seconds,” and “[s]he had a two-

inch circle or sway.”      Id. at 93. Trooper Schiavoni stated that during the

walk-and-turn test, Hohenwarter demonstrated three out of the eight clues

used to indicate impairment, i.e., stepping out of position, raising her arms

for balance, and turning in the wrong direction.              See id. at 95-96.

Additionally, Trooper Schiavoni observed leg and body tremors during the

test. See id. 95-96, 97. Hohenwarter did not complete the one-leg stand

test because she had complained of pain. See id. at 98. Trooper Schiavoni


____________________________________________


4   Miranda v. Arizona, 384 U.S. 435 (1966).



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testified that she allowed Hohenwarter to complete the finger-to-nose test in

a seated position. See id. at 99. Additionally, Trooper Schiavoni testified

that Hohenwarter touched below the tip of her nose on several attempts,

failed to follow instructions, and moved her arms slowly. See id. at 101-02.

      Further, Trooper Schiavoni observed that Hohenwarter’s speech

sounded “thick and slurred” during the examination.      See id. at 87, 111.

Trooper Schiavoni testified that the size of Hohenwarter’s pupils did not

change significantly when checked under three different light settings. See

id. at 106. Trooper Schiavoni also stated that Hohenwarter’s muscle tone

“felt a little on the flaccid side” during the examination.   Id. at 108; see

also id. (wherein Trooper Schiavoni explained that individuals impaired by

central nervous system depressants and narcotics tend to have flaccid

muscle tone). Trooper Schiavoni noted that Hohenwarter seemed drowsy,

slow and sluggish during the evaluation.     See id. at 111.     Additionally,

Trooper Schiavoni testified that Hohenwarter’s speech and movements were

different at the time of trial than they were at the time of the evaluation.

See id. at 111-14. Based on her evaluation, Trooper Schiavoni concluded

that Hohenwarter was likely under the influence of a central nervous system

depressant and a narcotic analgesic.     See id. at 110, 111-12.      Trooper

Schiavoni testified that, in her opinion, Hohenwarter “was incapable of safe

driving due to those two drug categories.” Id. at 116. Trooper Schiavoni

shared her conclusions with Trooper Shutter, and recommended that

Hohenwarter be taken to the hospital for a blood test. See id.

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      Trooper    Shutter     transported    Hohenwarter           to   Lancaster   General

Hospital, and read her the implied consent warning contained in the revised

DL-26 form.     See id. at 36-37.        Hohenwarter signed the DL-26 form and

agreed to submit to chemical testing.                 See id. at 37.       Donna Papsun

(“Papsun”), the board-certified forensic toxicologist at NMS Labs who

reviewed the data obtained from Hohenwarter’s blood sample and completed

the   report,   testified   that   the   test    resulted    in    positive   findings   for

“amphetamine      at   230    nanograms         per    millimeter,     oxycodone    at   26

nanograms per milliliter, and citalopram at 100 nanograms per milliliter.”

Id. at 152. According to Papsun, the concentration of each drug was within

the therapeutic range, “depending on whether or not someone has a

prescription and what that prescription would be for.” Id. Papsun testified

that the presence of a drug within the therapeutic range does not necessarily

mean that the individual could not be impaired by that substance.                   Id. at

153; see also id. at 162 (wherein Papsun testified that “[j]ust because

someone is prescribed a drug doesn’t necessarily mean they’re not subject

to the adverse effects of the drug,” and explaining that the physical

manifestations of the drug must be considered). Papsun stated that she was

most concerned with the presence of oxycodone, and a concentration of

oxycodone at 26 nanograms per milliliter could be sufficient to cause

impairment. Id. at 152, 153-54, 155. Papsun testified that, in her opinion,

after hearing the testimony of Troopers Shutter and Schiavoni and watching

the recording of the field sobriety tests, the symptoms exhibited by

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Hohenwarter were consistent with being under the influence of oxycodone.

See id. at 155-157; see also id. at 156 (wherein Papsun explained that the

effects of oxycodone include “constricted pupils, slurred speech, on-the-nod

behavior, [and] slow, sluggish reactions”).   Additionally, Papsun testified

that pain could account for some of Hohenwarter’s incoordination, but would

not explain her slurred speech, delayed reaction, fumbling, slow responses,

or spatial understanding. See id. at 158.

     Upon review, we conclude that the evidence presented at trial, viewed

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

sufficient to establish that Hohenwarter “was under the influence of a drug

or combination of drugs to a degree that [her] ability to drive [was]

impaired.” Tarrach, 42 A.3d at 345. Accordingly, we affirm Hohenwarter’s

judgment of sentence.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2018




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