J-A06031-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ALEX HENRY HORVATINOVIC,

                            Appellant                 No. 1279 MDA 2015


             Appeal from the Judgment of Sentence March 30, 2015
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0006946-2013


BEFORE: LAZARUS, STABILE, and DUBOW, JJ.

MEMORANDUM BY STABILE, J.:                         FILED OCTOBER 14, 2016

        Appellant, Alex Henry Horvatinovic, appeals from the March 30, 2015

judgment of sentence entered in the Court of Common Pleas of York County

(“trial court”) following his convictions of DUI: Controlled Substance-

Schedule I, Second Offense, and DUI: Controlled Substance-Schedule I, II,

or III, Second Offense.1 Appellant challenges the sufficiency and weight of

the evidence. Upon review, we affirm.

        In the early morning hours of May 25, 2013, several officers of the

Northern York County Regional Police Department, including Zachary Grey,

were operating a DUI checkpoint on North George at Sixth Avenue in North

York Borough, York Pennsylvania. N.T. Jury Trial, 1/9/15, at 49, 52. Officer
____________________________________________


1
    75 Pa.C.S.A §§ 3802(d)(1)(i) and 3802(d)(1)(iii), respectively.
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Grey interacted with a red Hyundai Elantra at approximately 1:54 a.m.. Id.

at 52, 53. Officer Grey identified Appellant as the driver of the vehicle. Id.

at 54. The officer working the line approached Officer Grey with Appellant.

Id. Appellant admitted drinking a beer and two shots of Jameson about 30

minutes before speaking to Officer Grey. Id. at 55. Upon completion of the

field sobriety tests, Officer Grey arrested Appellant, took him to central

booking, and asked him to submit to a chemical test of his blood. Id. at 60.

       Appellant agreed to submit to a chemical test. Id. Officer Grey was

continually in the presence of Appellant between the initial interaction and

the blood draw. Id. at 61. Appellant did not have anything to eat or drink

during the period between the field sobriety tests and the blood draw. Id.

at 61.    The blood draw occurred at 2:44 a.m..    Id. at 66.   Ayako Chan-

Hosokawa, a forensic toxicologist at NMS Laboratories, testified about the

blood testing procedures and results. See generally id. at 95-127.

       The active ingredient in marijuana, Delta-9 THC, was found in the

Appellant’s blood sample at a concentration of 13 nanograms per milliliter.

Id. at 124-25. Delta-9 Carboxy THC, a final product after either smoking or

ingesting marijuana, was found in Appellant’s blood at a concentration of 90

nanograms per milliliter. Id. at 124. Additionally, 11-Hydroxy Delta-9 THC

was found in Appellant’s blood at a concentration of 5.1 nanograms per

milliliter.   Id.   Delta-9 Carboxy THC and 11-Hydroxy Delta-9 THC are

metabolites of marijuana.    Id. at 125.   Ms. Chan-Hosokawa testified that

marijuana can enter the bloodstream via inhalation or orally.     Id. at 154.

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When marijuana is inhaled it can enter the bloodstream within a minute;

when marijuana is consumed orally, it takes a little longer, possibly within

15 minutes.2 Id. at 154-55.

        A jury trial was held on January 9, 2015.     The jury found Appellant

guilty of DUI: Controlled Substance-Schedule I, Second Offense, and DUI:

Controlled Substance-Schedule I, II, or III, Second Offense.3 Appellant was

found not guilty of DUI-Controlled Substance Combination of Drug and

Alcohol.4    On March 30, 2015, the trial court sentenced the Appellant to 60

days of incarceration at the York County Prison, followed by 90 days of

house arrest with alcohol monitoring, and five years of probation.         This

appeal followed.

        On appeal, Appellant raises four issues:

              I.     Whether there was insufficient evidence to support
                     the Jury’s finding of guilt for DUI, Controlled
                     Substance, because the Commonwealth failed to
____________________________________________


2
  This Court notes the Commonwealth’s improper citation to the N.T. Jury
Trial, and its assertions of facts that do not exist in the record. For example,
in its brief, the Commonwealth states, “Ms. Chan-Hosokawa concluded that
the results are consistent with [Appellant] smoking marijuana approximately
one to two hours prior to his blood draw, and before [Appellant] drove to the
checkpoint.” Appellee’s Brief at 10. The page number where Ms. Chan-
Hosokawa testified about the timing of marijuana in the bloodstream occurs
on pages 154-55 not page 152. Furthermore, Ms. Chan-Hosokawa did not
testify that Appellant smoked marijuana approximately one to two hours
prior to his blood draw.
3
    75 Pa.C.S.A §§ 3802(d)(1)(i) and 3802(d)(1)(iii), respectively.
4
    75 Pa.C.S.A. § 3802(d)(3).




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                   establish whether there was a controlled substance
                   in [Appellant’s] blood at the time of driving and
                   whether [Appellant] drove the vehicle?

            II.    Whether there was insufficient evidence to support
                   the Jury’s finding of guilt for DUI, Controlled
                   Substance, because the Commonwealth failed to
                   establish whether [Appellant] drove the vehicle?

            III.   Whether the Jury’s verdict is against the weight of
                   the evidence when the Commonwealth’s expert could
                   not render an opinion as to whether there was a
                   controlled substance in [Appellant’s] blood at the
                   time of driving?

            IV.    Whether the Jury’s verdict is against the weight of
                   the evidence when the Commonwealth failed to
                   establish whether [Appellant] drove the vehicle?

Appellant’s Brief at 7.

      This Court’s standard of review for sufficiency of the evidence is well

established.

      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. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant's innocence. 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.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(quoting Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super.

2013)). Pennsylvania’s DUI statute provides in relevant part:

            An individual may not drive, operate or be in actual
            physical control of a vehicle under any of the following
            circumstances:


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                  (1) There is in the individual’s blood any amount of
                  a:

                        (i) Schedule I controlled substance, as defined
                        in the act of April 14, 1972 (P.L. 233, No. 64,
                        known as the Controlled Substance, Drug, and
                        Cosmetic Act. . . .

                        (iii) metabolite of a        substance     under
                        subparagraph (i) or (ii).

75 Pa.C.S.A. § 3802(d)(1).     To establish guilt, the Commonwealth must

prove that the Appellant was (1) driving, operating, or be in actual physical

control of a vehicle, and (2) there was a Schedule I controlled substance in

the Appellant’s blood or for the metabolite offense, a metabolite thereof.

      As the Appellant’s first two arguments contain significant overlap, this

Court will address them together.     Appellant’s argument is that there was

insufficient evidence to show that Appellant was in actual physical control of

the vehicle.   “Under Pennsylvania law, an eyewitness is not required to

establish one was driving, operating, or in actual physical control of a motor

vehicle, but rather, the Commonwealth may establish the same through

wholly circumstantial evidence.” Commonwealth v. Young, 904 A.2d 947,

954 (Pa. Super. 2006). “Our precedent indicates that a combination of the

following factors is required in determining whether a person had ‘actual

physical control’ of an automobile:   the motor running, the location of the

vehicle, and additional evidence showing that the defendant had driven the

vehicle.” Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008)

(citation omitted). “A determination of actual physical control of a vehicle is

based upon the totality of the circumstances.”           Commonwealth v.


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Williams, 871 A.2d 254, 260 (Pa. Super. 2005) (citation omitted).        “In a

majority of cases, the suspect location of the vehicle, which supports an

inference that it was driven, is a key factor in a finding of actual control.”

Commonwealth v. Brotherston,          888 A.2d 901, 905 (Pa. Super. 2005)

(citation omitted).

      In Commonwealth v. Lehman, 820 A.2d 766 (Pa. Super. 2003), this

Court found that the defendant was in actual physical control of a vehicle

when at approximately 4:30 a.m. he was found slumped over in the driver’s

seat with the engine running, headlights on, and parked perpendicular to the

road. Lehman, 820 A.2d at 773. The Court reasoned “[i]t was apparent

appellant had driven to that location after having imbibed.” Id.

      In Young, a witness observed the defendant standing near the

driver’s side door moments after the vehicle crashed, the vehicle was

registered to the defendant, the officer discovered the keys in the

defendant’s pocket, and the car’s placement indicated it had been driven.

Young, 904 A.2d at 955. A panel of this Court found that there was ample

circumstantial evidence to establish that defendant was in actual physical

control of the vehicle. Id.

      It is clear upon a review of the totality of the circumstances that there

was sufficient evidence establishing that Appellant was operating the vehicle.

Appellant’s red Hyundai Elantra was stopped at a DUI checkpoint.            An

individual does not appear at a DUI checkpoint without having been in

control of a vehicle. Officer Grey was given custody of Appellant by the line

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officer at the DUI checkpoint for further examination. Viewing the evidence

in the light most favorable to the Commonwealth, including the location of

the vehicle, the circumstances surrounding the encounter with Officer Grey,

and Officer Grey’s identification of Appellant, sufficient circumstantial

evidence existed to establish that Appellant drove the vehicle.   Appellant’s

argument fails.

      Next, the Appellant argues that there was insufficient evidence to

establish whether there was a controlled substance in his blood at the time

of driving. As this Court has previously noted,

            the Vehicle Code precludes an individual from operating a
            motor vehicle with any amount of scheduled controlled
            substance, or a metabolite thereof, in the driver’s blood.
            Because marijuana is a Schedule I controlled substance,
            the Vehicle Code prohibits an individual from operating a
            vehicle after consuming any amount of marijuana.

Commonwealth v. Jones, 121 A.3d 524, 529 (Pa. Super. 2015) (citation

omitted) (emphasis in original).      As discussed above, Appellant first

interacted with Officer Grey at 1:54 a.m. and subsequently has his blood

drawn at 2:44 a.m.. During this time, Appellant did not consume any food

or beverages, and was continually in the presence of Officer Grey.       The

results of the blood tests showed that Delta 9-THC, a main ingredient of

marijuana was found in the Appellant’s bloodstream.    Additionally, Delta-9

Carboxy THC and 11-Hydroxy Delta-9 THC, two metabolites of marijuana,

were found in Appellant’s bloodstream. As Appellant did not consume any

marijuana while at the DUI checkpoint, there was sufficient evidence to find



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that the Appellant had marijuana and metabolites of marijuana in his system

while he was operating a motor vehicle. Appellant’s argument fails.

     Appellant’s final two claims are challenges to the weight of the

evidence. In reviewing a claim challenging the weight of the evidence,

     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. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation

omitted). Moreover, a weight of the evidence claim “concedes that there is

sufficient evidence to sustain the verdict.” Commonwealth v. Smith, 853

A.2d 1020, 1028 (Pa. Super. 2004) (citation omitted).

     Appellant asserts that because Ms. Chan-Hosokawa was unable to

determine exactly when Appellant ingested marijuana, the verdict was

against the weight of the evidence. Officer Grey testified that he was with

Appellant from his time at the DUI checkpoint at 1:54 a.m. until the blood

draw at 2:44 a.m.. During such time, Appellant did not consume any food

or beverages. Furthermore, the results of the blood tests showed that Delta

9-THC, Delta-9 Carboxy THC, and 11-Hydroxy Delta-9 THC, were found in

Appellant’s bloodstream.   Additionally, Ms. Chan-Hosokawa testified that

marijuana ingested via inhalation can enter the bloodstream within a minute



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and marijuana ingested orally can enter the bloodstream within fifteen

minutes.       Based upon the testimony of Officer Grey and Ms. Chan-

Hosokawa, the trial court did not abuse its discretion when it found the

verdict was not against the weight of the evidence.        Appellant’s argument

fails.

         Finally, Appellant asserts that the verdict was against the weight of the

evidence because the Commonwealth failed to establish whether Appellant

drove. As discussed above, based upon the testimony of Officer Grey, there

was circumstantial evidence to establish that Appellant was in actual physical

control of the vehicle. Therefore, the trial court did not abuse its discretion

when it found the verdict was not against the weight of the evidence.

Appellant’s argument fails.

         In conclusion, this Court finds that there was sufficient evidence to

justify the verdicts and the trial court did not abuse its discretion when it

found the verdict was not against the weight of the evidence.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/14/2016




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