J-S10041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ROBERT PINHAK,                             :
                                               :
                       Appellant               :      No. 1949 EDA 2018

         Appeal from the Judgment of Sentence Entered June 11, 2018
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0007242-2017


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                          FILED MARCH 22, 2019

        Appellant, Robert Pinhak, appeals from the judgment of sentence

entered in the Delaware County Court of Common Pleas, following his bench

trial conviction for driving under the influence of a controlled substance or a

combination of drugs (“DUI”).1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.2

____________________________________________


1   75 Pa.C.S.A. § 3802(d)(2).

2 Page 6, footnote 4 of the trial court opinion states that Officer Curran
attempted to obtain Appellant’s medical records by search warrant and
learned Appellant had refused to submit to blood and urine testing at the
hospital. The record shows that the court sustained Appellant’s hearsay
objection to Officer Curran’s testimony about Appellant’s refusal to submit to
blood and urine tests.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S10041-19


      Appellant raises one issue for our review:

         WHETHER THERE WAS INSUFFICIENT EVIDENCE TO
         SUPPORT THE TRIAL COURT’S VERDICT FINDING
         APPELLANT GUILTY OF DRIVING UNDER THE INFLUENCE:
         CONTROLLED SUBSTANCE [IMPAIRED ABILITY]—FIRST
         OFFENSE [(75 PA.C.S.A. SECTION 3802(D)(2))], WHERE
         THE COMMONWEALTH PRESENTED NO BLOOD EVIDENCE,
         NO EVIDENCE OF APPELLANT’S REFUSAL TO SUBMIT TO A
         BLOOD TEST ORDER OR BREATHALYZER, NO EXPERT
         TESTIMONY THAT APPELLANT WAS UNDER THE INFLUENCE
         OF ALCOHOL OR SCHEDULE 1 NARCOTICS, AND THE
         ARRESTING OFFICER DID NOT CONDUCT A FIELD
         SOBRIETY TEST OR EVEN OBSERVE APPELLANT DRIVING
         HIS VEHICLE?

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Richard M.

Cappelli, we conclude Appellant’s issue merits no relief. The trial court opinion

comprehensively discusses and properly disposes of the question presented.

(See Trial Court Opinion, filed September 20, 2018, at 2-8) (finding:

Commonwealth presented sufficient evidence to support DUI conviction, even

if arresting officer did not conduct field sobriety tests or observe Appellant

actually driving vehicle; officer is a twelve-year police veteran with

certification   as   a   drug   recognition   expert;   Appellant   was   obviously

unconscious and unresponsive due to opiate overdose; evidence established

that Appellant was incapable of safe driving).

      Appellant relies on Commonwealth v. Gause, 164 A.3d 532

(Pa.Super. 2017), appeal denied, 643 Pa. 188, 173 A.3d 267 (2017), for the


                                        -2-
J-S10041-19


proposition that the lay opinion of a law enforcement officer is insufficient to

prove that Appellant was under the influence of narcotics, where there is no

expert testimony, no blood test, no refusal for a blood test, no admission of

drug use, no recovery of narcotics, and no typical or obvious indicia of narcotic

use. Instantly, the Commonwealth did not present expert testimony. The

arresting officer, however, had a multitude of prior experiences involving

opiate overdoses, the officer found Appellant unconscious in the middle of a

busy intersection, Appellant exhibited obvious physical signs of opiate

overdose, Appellant remained unconscious despite shaking and chest rubbing,

and Appellant regained consciousness only after the officer administered two

doses of Narcan. This record supports the trial court’s decision. Accordingly,

we affirm based on the trial court opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/22/19




                                      -3-
                                                                           1_0pinion
                                                               Circulated 03/06/2019 10:00 AM




     IN THE COURT OF CO:MlvlON PLEAS OF DELAWARE COUNTY,
     CO:MlvlONWEALTH OF PENNSYLVANIA - CRIMINAL DMSION


COMM:ONWEALTH OF PENNSYLVANIA                        NO: 1949 EDA 2018

                      v.                             DELAWARE COUNTY
                                                     CP-23-CR-0007242-2017)
ROBERT PINHAK,
         Defendant/Appellant



CAPPELLI, J.                                       DATE: September 20, 2018


                                    OPINION

Procedural History

      Appellant, Robert Pinhak, appeals from his conviction and sentence for

violation of 75 § 3 802 D2, DUI, Controlled Substance - Impaired Ability - first

offense, an ungraded misdemeanor.

      On July 27, 2017 Appellant was charged with DUI: Controlled Substance or

Metabolite-first offense (75 § 3802 §§ DI), an ungraded misdemeanor, DUI:

Controlled Substance-Impaired ability-first offense, an ungraded misdemeanor,

Careless Driving, 75 § 3714 §§ A, a summary offense, Reckless Driving, 75 §

3736 §§A.On November 30, 2017 all charges were bound over after a preliminary

hearing. The Appellant was arraigned in the Court of Common Pleas of Delaware

County on January 5, 2018.


                                       1
      Appellant was convicted of violation of 75 § 3802 §§ D2 after non-jury trial

on May :2., 2018. On June 11, 2018 the Appellant was sentenced to a period of

incarceration of 72 hours to 6 months among other restorative sanctions. The

Appellant was to present himself to the Delaware County Prison on June 22, 2018

at 6 p.m. to begin his sentence. No post-sentence motions were filed.

      On June 27) 2018 Appellant through counsel filed a Notice of Appeal

challenging his conviction. On July 6) 2018 Appellant was ordered to file a

Concise Statement of Matters Complained of on Appeal. On July 17, 2018 the

Appellant filed a Concise Statement of E«oY.5 Complained of onAppeal.

      Appellant raises one issue on appeal averring there was insufficient evidence

to support the guilty verdict finding violation of 75 § 3802 §§ D2 where the

Commonwealth presented no blood alcohol evidence, no evidence of the

Appellant's refusal to submit to a blood test order or breathalyzer, no expert

testimony that Appellant was under the influence of alcohol or schedule 1 narcotics

and the arresting officer did not conduct a field sobriety test or even observe

[Appellant] driving his vehicle.

      Officer Michael Curran of the Upland Borough Police Department was

called to testify at trial. He is a twelve year police veteran. At the time of his

testimony he was ranked as a Corporal in the Patrol Division. (N.T. 5/2/18, pp. 4-

5).


                                          2
       On July 20, 2017he was in uniform in a marked patrol car when he received

a call about an unconscious driver in a white truck stopped at an intersection. (N. T.

5/2/18, p. 5).

       Officer Curran testified he received a dispatch call to Sixth and Main Street'

for an unconscious white male in a white pick-up truck in the middle of an

intersection at 7:52 a.m. Jd.

       When asked what he observed on arrival minutes after the call (the location

is a block away from the police station), Officer Curran testified on arrival there

was a white male slumped back in the driver's seat. No other occupants were in the

vehicle. Several bystanders were on the sidewalk. The driver (identified as

[Appellant]) had his eyes closed. ( N.T. 5/2/18, p.6).

       The Appellant's white pick-up truck was stopped in the middle of the

intersection. Id at 7. The whole intersection was stopped and unable to move about

or around the Appellant's vehicle. Traffic was gridlocked. (N.T. 5/2/18 p. 7).

Officer Curran testified that there was a lot of traffic in the intersection at that time

of the morning.

       On arrival Officer Curran describes there were bystanders lining both sides

of the street. Officer Curran approached the vehicle and again he identified


1
  Sixth and Main Street is described as one of the main intersections controlled by traffic signals
in all directions. It is a main road through town that crosses the other main road. There is a
school bus stop on the comer, and there is a little shop. (N.T. 5/2/18, p. 7).

                                                 3
Appellant as the only person in the vehicle behind the wheel. The keys were in the

ignition. The Appellant's foot was on the brake pedal. When Officer Curran

arrived his lights and loud siren were on but the Appellant did not stir. Officer

Curran opened the driver door and the Appellant unconscious slumped back2 in his

seat. Officer Curran tried to awaken the Appellant by shaking him to no response.

He began aggressively rubbing the Appellant's sternum. Id at 9.

         The Appellant was noticed to have very shallow breathing while sternum rub

was administered. Although Appellant could not be aroused to awaken in this

manner which was suggestive that the Appellant was not merely tired or sleeping

"because rubbing that part [which] usually brings them back." Id at JO.

         The Appellant did not arouse or awaken or become conscious with vigorous

shaking. At that point Officer Curran was thinking that Appellant was overdosing.

Id at 10. Therefore, Officer Curran retrieved his medical bag equipped with

Narcan and administered it. Officer Curran had previously administered Narcan on

multiple occasions.

         By way of background, Officer Curran testified to his qualifications

including his 201 7 certification as a drug recognition expert. In 2014 he underwent

specific training for opiate use and response and prevention. Currently he describes




2
    Further described as slumped with his head back with his eyes closed. Id.

                                                  4
encountering perpetrators under the influence of heroin and opiates on a weekly

basis.

         Respecting opiates, Officer Curran testified he looks for symptoms including

shallow breathing, cold clammy skin, and the most obvious is their pupils in their

eyes. Id at 12.

         Officer Curran testified that Appellant did not respond to the first dose of

Narcan. He also testified that the Appellant's eyes were pinpoints. They were the

size of pins and "no other drug does that." Id at 13. Because the Appellant was not

responding to noxious stimuli and the first dose of Narcan, Officer Curran

administered a second dose ofNarcan. Id at 13.

         At that point the Narcan starts working and the Appellant starts to come

"to", he starts moving around. Id at 14. His arms are moving and his body is

moving.3 Id.

         When asked if Narcan will work (be effective) on people who .. undergoing

a cocaine overdose, Officer Curran testifies "absolutely not." Id. "Narcan only

affects someone who is under the influence of an opiate." Id at 14.

         Eventually, EMS (Officer Curran called the EMS because he thought the

Appellant may die) arrived on the scene. They removed him from the vehicle, put


3
 Groggy like I said not talkative. He eventually starts opening up his eyes but he is slowly
moving his body. Id at 14.

                                                 5
him on a gurney, put him in the back of the ambulance and headed off to the

hospital. Id at 15.4

       Officer Curran testified he encounters people under the influence very

frequently. Officer Curran was asked to render his opinion as to whether the

Appellant was under the influence of a drug or a combination of drugs to a degree

which impaired his ability to safely drive, operate or be in physical control of the

movement of the motor vehicle to which he responded he believes the Appellant

was impaired underneath an opiate. (N. T. 5/2/18, p. 18).

       Against this evidence this Court finds no merit to the Appellant's challenge

on the basis the arresting officer did not administer field sobriety tests or even

observe the Appellant driving his vehicle. Here, obviously the Appellant was

unconscious and not responsive due to opiate overdose. There was both objective

evidence and    op,'m:orv testimony   that the Appellant was incapable of safe driving

pursuant to 75 § 3802 §§ D2.

Discussion

       With respect to Appellant's sufficiency of the evidence claim, after

careful review of the record, and the relevant case law, Appellant is not entitled to

relief on this issue.


4
  Officer Curran attempted to obtain the Appellant's medical records by search warrant and
learned the Appellant refused to submit to blood and urine testing at the hospital so he was
unable to obtain lab results. Id at 15.
                                                6
       "A claim challenging the sufficiency of the evidence is a question of law."

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The standard applied 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 Factfinder to find every element of the crime beyond a

reasonable doubt.

      In applying the above test, the Pennsylvania Superior Court may not weigh

the evidence and substitute their judgment for the Factfinder. In addition, it is

important to 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 Factfinder 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. Commonwealth v. Antidormi, 84 A.3d 736, 75 (Pa. 2014).




                                           7
       Subsection 3 802(d)(2) provides: 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).

       Subsection 3802(d)(2) requires proof that the defendant is under the

influence of a drug or combination of drugs to a degree which impairs his or her

ability to safely drive, operate or be in actual physical control of the movement of

his or her vehicle.

       Instantly the Commonwealth met their burden of proof as to each and every

element beyond a reasonable doubt sufficient for this Court to convict the

Appellant. 5




5
  See, Commonwealth v. Adams, 2005 Pa. Super 296, 882 A.2d. 496, 498-99 (Pa. Super. 2005).
See also, (citing Commonwealth v. Bobotas, 588 A.2d 518, 521 (Pa.Super.1991) (finding an
inference that it [the vehicle] was driven, is a key factor in a finding of actual control.) In a
majority of cases, the location of the vehicle supports defendant had driven the vehicle.
Commonwealth v. Woodruff, 447 Pa. Super, 2221 688 A.2d 1158 (1995). Other factors include
the motor running, the location of the vehicle, and additional evidence showing the actual
physical control. See, Commonwealth v. Williams 941 A.2d 14 (Pa. Super. 2008). A
determination of actual physical control, as .is required to sustain DUI conviction is based upon
the totality of the circumstances. Commonwealth v. Brotherson, 888 A.2d 901 (Pa. Super.
2005).



                                                 8
Conclusion

      For all the foregoing reasons this Court's decision should be affirmed.

                                              BY THE COURT:




cc:   John F.X. Reilly, Deputy District Attorney (Via: Interoffice and E-mail)
        Delaware County District Attorney's Office
      Kaitlyn Kramer, Appeals Unit Coordinator (Via: Interoffice and E-Mail)
        Delaware County District Attorney's Office
      Earl Raynor, Esquire (Via: First Class and E-mail)
        Attorney for Defendant/Appellant




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