J-S24027-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MOLLY KATHERINE MERSON,                    :
                                               :
                       Appellant               :   No. 807 MDA 2017


            Appeal from the Judgment of Sentence, March 30, 2017,
                 in the Court of Common Pleas of York County,
             Criminal Division at No(s): CP-67-CR-0002339-2016.


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY KUNSELMAN, J.:                              FILED JULY 11, 2018

       Molly Katherine Merson appeals from the judgment of sentence, entered

after a bench trial, where she was convicted for possession of a controlled

substance, possession of drug paraphernalia, and driving under the influence

of a controlled substance.1 After careful review, we affirm.

       On January 9, 2016, Trooper Jeffrey Simmons and his partner were on

patrol in York County, when they observed a vehicle make a left-hand turn

without using a turn signal. The troopers activated their cruiser’s emergency

lights, initiating a traffic stop. Merson was the operator of the vehicle. After

speaking with Merson, Trooper Simmons noticed that Merson’s eyes were

bloodshot and glassy, her speech was slurred, and she was acting nervously.

____________________________________________


135 Pa.C.S.A. § 780-113(a)(16), 35 Pa.C.S.A. § 780-113(a)(32), and 75
Pa.C.S.A 3802(d)(2) respectively.
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When asked why she was in the area when she lived in Maryland, Merson

replied that she had been “down a rough road” and was “just driving around

and stuff.”

      Both Troopers observed a pill bottle in Merson’s vehicle. When Trooper

Simmons inquired about the bottle, Merson replied that she had “a problem”

and handed it to Trooper Simmons and relayed she believed the crushed

substance was a combination of Xanax and Adderall. Merson later stated that

she was a former addict and had been an on and off drug user. The bottle

contained a small orange straw with residue on it and a crushed substance.

      Suspecting Merson was under the influence of a controlled substance,

Trooper Simmons asked Merson to exit the vehicle to conduct field sobriety

tests. Merson failed both the “walk and turn” test and the “one leg stand”

test. Trooper Simmons subsequently arrested Merson under the belief that

she was driving under the influence of a controlled substance which rendered

her incapable of safely operating the vehicle.   After arresting Merson and

placing her in the back of the cruiser, Trooper Rutter found a baggie in

Merson’s purse that contained a pill which she believed was either Suboxone

or Xanax.

      Following her convictions, the court sentenced Merson to six months

intermediate punishment with the first seventy-two hours served under house

arrest, concurrent with twelve months of probation.    Merson filed a post-

sentence motion on April 10, 2017, which the trial court denied. This timely




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appeal followed. Both Merson and the trial court have complied with Pa.R.A.P.

1925.

        Merson raises the following two issues on appeal:

          1. The Commonwealth presented insufficient evidence to
             convict [Merson] under 75 Pa.C.S. § 3802(d)(2) because
             it failed to prove [Merson] was under the influence of
             drugs or a combination of drugs.

          2. The Commonwealth presented insufficient evidence to
             convict [Merson] under 75 Pa.C.S. § 3802(d)(2) because
             it failed to prove [Merson] was incapable of safely driving
             a motor vehicle due to being under the influence of a
             controlled substance.

Merson’s Brief at 4.

        Both issues challenge the sufficiency of the evidence. Our standard of

review when reviewing sufficiency of the evidence claims with respect to

convictions under 75 Pa. C.S.A. § 3802(d)(2) was set forth by this Court in

Commonwealth v. Griffith, 985 A.2d 230 (Pa. Super. 2009) 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, and may sustain its burden by means of wholly
          circumstantial evidence. Significantly, we may not
          substitute our judgment for that of the factfinder; if the
          record contains support for the convictions they may not be
          disturbed. So long as the evidence adduced, accepted in the
          light most favorable to the Commonwealth, demonstrates

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        the respective elements of a defendant's crimes beyond a
        reasonable doubt, his convictions will be upheld. 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 conviction challenges arose from application of the
        specific requirements of 75 Pa.C.S. § 3802(d)(2), and may
        be affirmed only to the extent that the evidence adduced
        established beyond a reasonable doubt that [his] conduct
        was proscribed by its provisions. Section 3802(d) defines
        the circumstances under which an individual who has
        consumed controlled substances alone or in combination or
        in combination with alcohol may not operate a motor
        vehicle. [The relevant portion of that] section provides as
        follows:

        § 3802. Driving under influence of alcohol or controlled
        substance

        ****

        (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. § 3802(d).

Griffith, 985 A.2d at 233-234 (brackets and citations omitted).

     In order to convict Merson of this offense, the Commonwealth had to

prove beyond a reasonable doubt that: (a) Merson was under the influence of

a drug or several drugs, and (b) due to the effects of the drug or drugs, she

could not safely drive her car. Merson contends that the Commonwealth failed

to show both of these elements.



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      Merson asserts that the facts set forth, connecting her behavior to

controlled substances are “merely speculative and an unreasonable inference

[…]” Merson’s Brief at 16. Merson implies that the Commonwealth needs

direct evidence of drug use to convict her under §3802(d)(2), arguing that the

Commonwealth cannot be absolved of “its burden to demonstrate [she] had

drugs in her system at the time the troopers pulled her over.”       Id. at 14.

Throughout her brief, Merson emphasizes “there is no proof in the record that

[she] had any prescription medication in her system” and the no evidence

“points to [her] having actually consumed a controlled substance.” Id. at 12,

14.

      We do not agree with either of Merson’s arguments that direct evidence

must exist to convict her of driving under the influence of a controlled

substance or that no evidence shows she was under the influence of drugs.

First, this Court has repeatedly held that no direct evidence is necessary for a

conviction. See Commonwealth v. DiPanfilo, 993 A.2d 1262 (Pa. Super.

2010), (affirming the defendant’s conviction under §3802(d)(2), when no

blood test was taken); Commonwealth v. Graham, 81 A.3d 137 (Pa. Super.

2013).    As noted in Griffith supra, the Commonwealth “may sustain its

burden by means of wholly on circumstantial evidence.” Griffith, 985 A.2d

at 233.

      We equally disagree with Merson’s assertion that no evidence existed to

support a finding that she ingested a controlled substance. On the contrary,

myriad of circumstantial evidence exists to support such a conclusion. First,

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the officer personally observed that Merson’s eyes were glassy and blood shot,

and her speech was slurred. She failed the field sobriety test because her

balance and coordination were compromised. Merson admited that “I have a

problem” when she handed Trooper Simmons the pill bottle and later stated

that she was an “on again off again” drug user. When the record contains

support for the conviction, as it does here, we may not disturb that conviction.

Griffith, supra. Although there was no eyewitness testimony or blood results

to demonstrate that Merson ingested drugs, the Commonwealth introduced

more than sufficient circumstantial evidence to prove she was under the

influence of a controlled substance.

      Merson chiefly relies on this Court’s decision in Commonwealth v.

Etchison, 916 A.2d 1169 (Pa. Super. 2007) to support her argument that

there was insufficient evidence to show she ingested a controlled substance.

In Etchison, the defendant was convicted for driving under the influence of

drugs. 75 Pa.C.S.A § 3802(d)(2). In that case, the defendant was stopped

after a trooper observed his vehicle traveling the wrong way on an exit ramp.

The defendant failed the administered field sobriety tests, had glassy,

bloodshot eyes, slurred speech and exhibited signs of nervousness.          The

defendant’s blood test results further showed that his blood alcohol content

was .05%, and there was also a presence of 53 nanograms of metabolites of

cannabinoid.

      This Court reversed the defendant’s convictions. The Commonwealth’s

expert witness testified that the presence of drugs in the defendant’s

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bloodstream merely indicated that the drugs had been ingested at some

previous unknown point in time, and the results could not demonstrate

impairment at the time of the stop.      Id. at 1172.   Despite the trooper’s

testimony regarding the defendant’s behavior and appearance, and in spite of

the fact that the defendant was travelling the wrong direction on an exit ramp,

this Court held that:

         the Commonwealth presented no evidence to support a
         conclusion that [defendant] was under the influence of a
         drug or combination of drugs at the time he was stopped,
         such that his ability was impaired. Thus, we hold there was
         insufficient evidence to convict [defendant] under Section
         3802(d)(2).

Id. at 1172. (emphasis added)

      At first glance, the facts in Merson’s case seem similar to Etchison. For

example, Officer Simmons testified that he personally observed that Merson’s

speech was slurred, and her eyes were glassy and bloodshot. Merson could

not successfully complete either field sobriety test, and she had difficulty

balancing, and following Trooper Simmons’ instructions during the tests.

      However, the defendant in Etchison did not have any controlled

substances or drug paraphernalia on his person.      Here, Trooper Simmons

found a crushed pill, and a straw which presumably Merson used to snort the

pill, readily visible in the front seat of the car when he stopped Merson for a

traffic violation.   When she handed the pill bottle to the trooper, Merson

admitted that she “had a problem” and that she periodically used drugs.

Further, another pill was found on Merson’s person. Merson was also driving


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around lost and aimless in York County, Pennsylvania although she lived in

Maryland, and she failed to use her left turn signal, suggesting she may have

been cognitively impaired from ingesting a controlled substance. Here, unlike

in Etchison, the Commonwealth produced sufficient evidence that she was

under the influence at the time she was stopped.

      In her second issue on appeal, Merson contends that insufficient

evidence exists that demonstrated she was unable to safely operate her

vehicle on the night in question. We disagree. Although failing to signal while

turning, alone, may not suffice, the Commonwealth produced additional

evidence to prove beyond a reasonable doubt that Merson could not safely

drive her vehicle.   Law enforcement need not wait until a vehicle is in an

accident to conclude the driver is not capable of driving competently.       In

Commonwealth v. Palmer, 751 A.2d 223 (Pa. Super. 2000), we held that:

         Evidence that the driver was not in control of himself, such
         as failing to pass a field sobriety test, may establish that the
         driver was under the influence of alcohol to a degree which
         rendered him incapable of safe driving, notwithstanding the
         absence of evidence of erratic or unsafe driving.

Id. at 228 (citations omitted).

      We believe the logic articulated in Palmer equally applies here. Merson

failed two field sobriety tests. This failure indicates that Merson did not have

physical control over her body and the degree of impairment rendered her

incapable of safely driving.

      Upon review, we          conclude that based on the totality of the

circumstances, viewing the evidence in the light most favorable to the

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Commonwealth as verdict winner, the evidence was sufficient to sustain

Merson’s conviction under section 3802(d)(2).

     Judgment of sentence affirmed.

     Judge Musmanno joins.

     Judge Olson concurs in result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/11/18




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