J-S01018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MARIA DANIECE STARVIS                      :
                                               :   No. 1295 MDA 2017
                       Appellant

             Appeal from the Judgment of Sentence June 28, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0007679-2015


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

MEMORANDUM BY MURRAY, J.:                             FILED JANUARY 30, 2018

       Maria Daniece Starvis (“Appellant”) appeals from the judgment of

sentence entered after the trial court convicted her of driving under the

influence (“DUI”) of a controlled substance (marijuana).1 Upon review, we

affirm.

       The trial court detailed the underlying facts as follows:

              In a Non-Jury trial, the Commonwealth presented one
       witness, who was Trooper Raymond Rutter of the
       Pennsylvania State Police. At the time of the nonjury trial,
       Trooper Rutter had worked since 2013 for the Pennsylvania
       State police, where he was trained about driving under the
       influence, including ARIDE, and training on standardized
       field sobriety tests. The trooper had been a part of over 100
       DUI investigations, and had made around 80 arrests for
       DUI. The trooper explained that he looked at the totality of
       the circumstances and used his training and experience
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1   75 Pa.C.S.A. § 3802(d)(2).
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     when investigating a DUI. The totality of the circumstances
     refers to the vehicle's motions, such as weaving, going off
     the road, crossing either the left or right lines, varying
     speeds, as well as the officer's interactions with the driver.
     When the officer interacts with the driver, there are several
     different things that may indicate DUI, including field testing
     results, glassy and bloodshot eyes, drug or alcohol odors,
     slurred speech and other interactions during the stop.

           The trooper testified that at 2:15 a.m. on September
     21, 2015, the trooper was driving on Interstate 83 when he
     observed Appellant's vehicle weaving back and forth. He
     followed the vehicle and observed it crossing the fog line
     four times and observed its speed varying. Then, the
     trooper conducted a stop, suspecting a DUI. Appellant was
     the driver of the vehicle.

           When the trooper interacted with [Appellant], he
     observed that she had dilated pupils, and bloodshot, glassy
     eyes. He also smelled a strong odor of marijuana coming
     from the vehicle.    During his testimony, the trooper
     explained that the bloodshot, glassy eyes can indicate
     impairment from marijuana.

           Then, the trooper asked Appellant about her
     marijuana use. At first, Appellant said that it had been a
     few months since she last smoked marijuana.          Next,
     Appellant said she had smoked marijuana earlier that day.
     Then, when the trooper asked how many hours ago she
     smoked, Appellant said four hours, but then she added "two
     songs." The trooper assumed Appellant may have been
     referencing karaoke or songs as a time frame, though he
     was unsure what she meant by the time frame of “two
     songs."

            Based on the totality of the circumstances, the trooper
     arrested Appellant for suspicion of DUI and transported her
     for blood draw. Specifically, the trooper indicated that the
     totality of the circumstances suggested that she was under
     the influence of marijuana.

           Field sobriety tests were performed, though some
     were not done or were modified because Appellant had
     recent surgery on her leg and because she had a rod in her

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       leg. Specifically, the trooper administered the modified
       Romberg and lack of convergence tests.

              In the modified Romberg test, the trooper told
       Appellant to tilt her head back with her eyes closed and,
       then, when she estimated the 30 seconds was over, to bring
       her head down and tell the trooper to stop. For suspected
       marijuana use, the officer looks for whether the eyelids
       flutter as well as the variation from the 30 seconds during
       that test. When Appellant performed the test, she stopped
       at 44 seconds, rather than 30 seconds. This indicated to the
       trooper that there was some impairment.

             Then, the lack of convergence test was performed.
       During the lack of convergence test, the officer looks for
       whether or not the eyes converge when the officer brings a
       pen or finger doing circles slowly into the nose's bridge. In
       other words, the test is to see if the eyes cross. During the
       test, the officer observed a lack of convergence in that
       Appellant's right eye did not converge, which further
       indicated to the officer that there was impairment.

             [Appellant was charged with DUI and proceeded to a
       bench trial.] During the non-jury trial, the dashcam video
       was played, which showed the Appellant's vehicle crossing
       the fog line several times as well as the field sobriety
       testing.

Trial Court Opinion, 10/5/17, at 2-6 (citations to notes of testimony and

footnotes omitted).

       At the conclusion of trial on June 1, 2017, the trial court found Appellant

guilty of DUI under Section 3802(d)(2).2 On June 28, 2017, the trial court


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2   Section 3802(d)(2) states in relevant part:

       (d)    Controlled substances – An individual may not drive,
              operate or be in actual physical control of the



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sentenced Appellant to 72 hours to six months’ imprisonment, and imposed a

$1,000 fine and court costs. Appellant filed a timely post-sentence motion on

June 29, 2017, in which she challenged the weight of the evidence and

requested a new trial. The trial court denied Appellant’s motion on July 24,

2017, and Appellant filed this timely appeal. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

       Appellant presents a single issue for our review:

       Whether the trial court erred in denying [Appellant’s]
       challenge to the weight of the evidence where the
       Commonwealth may have shown ingestion of marijuana but
       failed to prove any actual impairment in light of her driving,
       coherence, and cooperation.

Appellant’s Brief at 4.

       Appellant argues that the trial court erred in denying her post-sentence

motion, and claims her DUI conviction was contrary to the weight 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 trial court nolle prossed counts 1 and 2, DUI under Sections 3802(d)(1)(i)
and 3802(d)(1)(iii), respectively, and found Appellant not guilty of counts 4
and 5, summary traffic offenses. See N.T., 6/1/2017, at 39.


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evidence. Our standard of review for whether a verdict is against the weight

of the evidence is well settled:

      Appellate review of a weight claim is a review of the exercise
      of discretion, not of the underlying question of whether the
      verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the
      evidence presented, an appellate court will give the gravest
      consideration to the findings and reasons advanced by the
      trial judge when reviewing a trial court's determination that
      the verdict is against the weight of the evidence. One of the
      least assailable reasons for granting or denying a new trial
      is the lower court's conviction that the verdict was or was
      not against the weight of the evidence and that a new trial
      should    be    granted    in   the    interest   of   justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

internal citations omitted). A “true weight of the evidence challenge concedes

that sufficient evidence exists to sustain the verdict but questions which

evidence is to be believed.” Commonwealth v. Thompson, 106 A.3d 742,

758 (Pa. Super. 2014) (internal citation omitted). To prevail on a weight of

the evidence challenge, “the evidence must be so tenuous, vague, and

uncertain   that   the   verdict   shocks   the   conscience   of   the   court.”

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015) (internal

quotations and citations omitted), appeal denied, 138 A3d 4 (Pa. 2016).

This Court must consider whether the trial court’s decision constituted a




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palpable abuse of discretion.3 Where the record adequately supports the trial

court, the trial court has acted within the limits of its judicial discretion.

       Appellant argues that the weight of the evidence shows that although

she may have smoked marijuana, such consumption did not impair her

driving. Appellant’s Brief at 12. Appellant further contends that the “[f]ootage

of her driving shows no serious infractions, she was coherent and cooperative

after being pulled over, and the tests that purportedly established impairment

were not standardized and were performed by an officer who was not a drug

recognition expert.” Id.

       In arguing that the trial court abused its discretion, Appellant relies, in

part, upon this Court’s decision in Commonwealth. v. Etchison, 916 A.2d

1169 (Pa. Super. 2007). Appellant contends that Etchison requires proof of

actual, present impairment, and that “evidence of marijuana ingestion is not

enough to sustain a conviction like [hers].”        Appellant’s Reply Brief at 1.

Appellant further relies on our recent decision in Commonwealth v. Gause,

164 A.3d 532, 537 (Pa. Super. 2017), appeal denied, 173 A.3d 267 (Pa.

2017).     She attempts to discredit, inter alia, her “eyelid tremors and

perception of time during the Romberg test” and the opinion of “a non-expert

in drug recognition,” by citing several secondary sources that address the



____________________________________________


3  An abuse of discretion may be found when the trial court reaches a
manifestly unreasonable judgment, misapplies the law, or bases its decision
on partiality, prejudice, bias, or ill-will. See, e.g., Clay, 64 A.3d at 1056.

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supposed “peculiarities of marijuana intoxication.” See Appellant’s Brief at

13-15; Appellant’s Reply Brief at 3-6.           The Commonwealth responds that

Appellant “makes light of the substantial amount of evidence presented to

establish her impairment,” and argues that Appellant attempts to challenge

the sufficiency of the evidence.4 Brief of Commonwealth at 18. We agree that

Appellant fails to articulate a viable weight claim.

       A new trial is warranted only when the verdict is so contrary to the

evidence that it shocks one's sense of justice. See, e.g., Commonwealth v.

Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016) (internal quotations and

citations omitted), appeal denied, 145 A.3d 724 (Pa. 2016). Here, the trial

court found no merit to Appellant’s weight claim, and explained:

       [T]his court found that there was evidence of driving
       impairment based on the trooper’s testimony and the
       dashcam video. While Appellant was driving, she was
       weaving to the extent that she crossed over the line multiple
       times, and her speed varied.         Contrary to Appellant’s
       argument, one turn signal and pulling over does not mean
       she was not impaired. Those actions mean she had some
       presence of mind to use a turn signal and not flee—plenty
       of DUI drivers obey some of the traffic laws and some pull
       over without fleeing. However, they are still impaired. In
       addition, during the stop, the trooper asked her several
       times when she had last smoked, and her third answer was
       four hours and then “two songs” which did not make much
       sense to the trooper, or to the [trial c]ourt for that matter.
____________________________________________


4 Appellant responds to the Commonwealth’s assertion: “To be clear, it is a
weight claim. This is because there is evidence in the record that, if properly
credited and accorded significance, would indicate impairment: [Appellant’s]
admitted ingestion of marijuana; her performance on the tests [Trooper]
Rutter administered; and her minor driving infractions.”” Appellant’s Reply
Brief at 4.

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      . . . Rather than focusing solely on the Romberg test, this
      [c]ourt had also taken a look at the totality of the
      circumstances in finding Appellant guilty of driving under the
      influence.

Trial Court Opinion, 10/5/17, at 8-9 (emphasis original).

      It is well settled that the trial court, as factfinder, is free to believe all,

part, or none of the evidence adduced at trial. See, e.g., Konias, 136 A.3d

at 1022. The trial court in this case found Trooper Rutter’s testimony to be

credible. Because the trial court’s credibility determinations are supported by

the record, we will not disturb them on appeal.

      For the above reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/30/18




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