J-A18018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JARAD A. ANGOTTI

                            Appellant                 No. 966 WDA 2016


             Appeal from the Judgment of Sentence May 23, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0006569-2015


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

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

       Jarad A. Angotti appeals from the judgment of sentence, entered in

the Court of Common Pleas of Allegheny County, following his conviction for

driving under the influence (DUI) of a controlled substance1 and possession

of drug paraphernalia.2 After review, we affirm.

       The trial court summarized the facts of this case as follows:

       On or about March 21, 2015, Keenan Jamison witnessed
       [Angotti] driving a black Chevy Blazer traveling on Miller Road,
       make a left turn onto Waddell Avenue and pull into the parking
       lot of the Family Dollar. [Jamison] observed [Angotti] park his
       vehicle and remain in the vehicle for a minute or two. [Jamison]
       then observed [Angotti] exit from the driver’s side door, take a
       few steps forward, fall down, get up and fall again before turning
____________________________________________


1
    75 Pa.C.S.A. §3802(d)(1).
2
    35 P.S. § 780-113(a)(32).
J-A18018-17


      and walking back towards his car. [Jamison] observed [Angotti]
      walk back to his car where he eventually went back to the
      driver’s seat and slumped over the steering wheel. [Jamison],
      concerned for [Angotti’s] welfare, called 911 to report [Angotti’s]
      behavior. [Jamison] testified that he was able to keep a clear
      view of [Angotti] from the first moment he saw him driving the
      vehicle to the time when the police and paramedics arrived.

      Police Officer[] Matthew McDaniel responded to the 911 call and
      arrived at the scene shortly thereafter.          Officer McDaniel
      observed [Angotti] staggering and slurring his speech and, based
      upon his twenty [] years of experience and training, he believed
      [Angotti] to be under the influence of a controlled substance.
      [Angotti] admitted to Officer McDaniel that he used a bag of
      heroin.      An orange-capped needle was recovered from
      [Angotti’s] coat pocket. No other [] drug paraphernalia was
      found on [Angotti] or in his vehicle. . . . [Angotti’s] blood tested
      positive for methamphetamine and opiates.

Trial Court Opinion, 11/30/16, at 3-4.

      Angotti was charged with DUI (controlled substance), accidents

involving damage to unattended vehicle or property and possession of drug

paraphernalia.    The trial court convicted Angotti of DUI (controlled

substance) and possession of drug paraphernalia following a non-jury trial

held on May 5, 2016. On May 23, 2016, the trial court sentenced Angotti to

three to six days’ confinement and six months’ probation, with no further

penalty for the drug paraphernalia count.      The trial court denied Angotti’s

timely post-sentence motion for a new trial. On June 30, 2016, he filed a

timely notice of appeal.      On October 27, Angotti filed a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.       On appeal, Angotti

raises the following issue:

      Was the evidence insufficient as a matter of law to convict
      [Angotti] of . . . driving under the influence of controlled

                                       -2-
J-A18018-17


       substance, as the Commonwealth failed to prove beyond a
       reasonable doubt that [Angotti’s] blood contained any . . .
       controlled substance . . . at the time he drove, operated or was
       in actual physical control of the movement of a motor vehicle?

Brief of Appellant, at 6. Specifically, Angotti avers that he did not use any

controlled substances until after he parked his vehicle and relinquished

actual physical control of its movement.3

       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. 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 Commonwealth may sustain its burden by means of wholly
       circumstantial evidence. Accordingly, the fact that the evidence
       establishing a defendant’s participation in a crime is
       circumstantial does not preclude a conviction where the evidence
       coupled with the reasonable inferences drawn therefrom
       overcomes the presumption of innocence. Significantly, we may
       not substitute our judgment for that of the fact finder; thus, so
       long as the evidence adduced, accepted in the light most
       favorable to the Commonwealth, demonstrates the respective
       elements of a defendant’s crimes beyond a reasonable doubt,
       the appellant’s convictions will be upheld.

____________________________________________


3
   Angotti died on January 25, 2017 during the pendency of his appeal;
however, his death does not render his appeal moot. See Commonwealth
v. Bizzaro, 535 A.2d 1130 (Pa. Super. 1987) (death of appellant does not
moot appeal).




                                           -3-
J-A18018-17



Commonwealth v. Pettyjohn, 64 A.3d 1072, 1074-75 (Pa. Super. 2013).

     An individual is prohibited from driving, operating or controlling the

movement of a motor vehicle with any quantity of certain illegal drugs (or

metabolites thereof) in his bloodstream.    75 Pa.C.S. § 3802(d)(1)(i)-(iii).

Illegal drugs, as defined in section 3802, include Schedule I controlled

substances and Schedule II and Schedule III substances that have not been

medically prescribed for that individual. Id. In a prosecution for DUI, the

Commonwealth can establish that a defendant had actual physical control of

a vehicle through wholly circumstantial evidence.        Commonwealth v.

Williams, 941 A.2d 14, 27 (Pa. Super. 2008).

     Here, Jamison observed Angotti drive his Chevrolet Blazer into the

Family Dollar parking lot on the morning of March 21, 2015. Angotti backed

into “the furthest spot away from the [Family Dollar].” N.T. Nonjury Trial,

5/5/16, at 7. After one or two minutes, Angotti exited the vehicle; he was

wearing a “black [N]orth [F]ace jacket.”    Id. at 10.   Angotti fell straight

down approximately 20 yards from his vehicle while attempting to walk to

the Family Dollar.   After getting up, Angotti did not proceed to the Family

Dollar, but rather returned to his vehicle; he did not make it back to his

vehicle before falling a second time. Jamison believed “[Angotti] was having

a seizure,” and, fearful that he required immediate medical attention, he

called 911. Id. While awaiting the arrival of emergency services, Jamison

continued to watch Angotti, who was sitting in the driver’s seat slumped

over the steering wheel.    Less than five minutes later, Officer McDaniel

                                    -4-
J-A18018-17



arrived at the Family Dollar parking lot; Angotti left his vehicle and walked in

the opposite direction.       At no point prior to Officer McDaniel’s arrival did

Jamison observe Angotti remove his jacket. Officer McDaniel noticed Angotti

was staggering and asked him to stop, after which he inquired as to

Angotti’s well-being. Angotti’s response was slurred, and Officer McDaniel, a

20-year veteran of the police force, believed Angotti was under the influence

of a controlled substance. Angotti admitted to Officer McDaniel that he used

a bag of heroin, and Officer McDaniel recovered an orange-capped

intravenous needle from Angotti’s jacket pocket.               Officer McDaniel also

noticed a recent track mark on Angotti’s arm. Angotti consented to a blood

draw,    the    results     of   which     established   the    presence   of   both

methamphetamines and opiates in his bloodstream.4 See Commonwealth
____________________________________________


4
   Although the trial court discusses the applicability of Birchfield v. North
Dakota, 136 S.Ct. 2160 (June 23, 2016), Angotti does not raise or argue
the issue in his appellate brief. In Birchfield, the United States Supreme
Court concluded “a breath test, but not a blood test, may be administered as
a search incident to a lawful arrest for drunk driving.” Birchfield, 136 S.Ct.
at 2185. Specifically, the Supreme Court held that states cannot impose
criminal penalties upon individuals who refuse to submit to a warrantless
blood test because such penalties violate an individual’s Fourth Amendment
(as incorporated into the Fourteenth Amendment) right to be free from
unreasonable searches and seizures. Admittedly, the instant direct appeal
was pending (notice of appeal filed on June 30, 2016) at the time the
Supreme Court decided Birchfield. Despite the trial court’s conclusion that
this claim is waived, we note, “a challenge to the legality of sentence cannot
be waived.” Commonwealth v. Dickson, 918 A.2d 95, 99 (Pa. 2007). As
such, this is a legality issue which we may sua sponte raise.
Commonwealth v. Foster, 17 A.3d 332, 342 (Pa. 2011) (sentencing issues
relating to court’s statutory authority to impose sentence implicate legality
of sentence).
(Footnote Continued Next Page)


                                           -5-
J-A18018-17



v. Griffith, 32 A.3d 1231, 1240 (Pa. 2011) (evidence was sufficient to

support DUI charge where experienced police officer closely observed

defendant’s behavior, demeanor, unsteadiness, defendant admitted taking

controlled substance on day of her arrest, and two other controlled

substances were detected in her blood).

      Angotti contends that he did not use heroin and/or methamphetamines

until after he parked his vehicle and before police arrived.        However,

Jamison did not observe Angotti remove his jacket to inject heroin and/or

                       _______________________
(Footnote Continued)

This Court recently determined that no matter the substance suspected of
affecting a particular DUI arrestee, the law requires that warrant
authorization or individual consent not based on the pain of criminal
consequences predicate a blood test. See Commonwealth v. Ennels, 167
A.3d 716 (Pa. Super. 2017). However, where a driver validly consents to a
blood test prior to receiving warning of enhanced criminal penalties for
failure to do so, we do not implicate Birchfield, as the warnings do not taint
the driver’s consent. See Commonwealth v. Haines, 166 A.3d 449 (Pa.
Super. 2017) (citing Birchfield, 136 S.Ct. at 2185-86). Even so, we are not
constrained to implicate Birchfield only where a defendant receives an
enhanced penalty for refusing a blood draw. Rather, Birchfield is also
implicated where a defendant consents to a blood draw subsequent to
receiving DL-26 warnings; however, such cases do not necessarily raise
legality of sentence questions that this Court may address sua sponte.

Here, Angotti voluntarily consented to a blood draw after admitting to using
heroin. There is no indication in the record that Officer McDaniel informed
Angotti that he would face enhanced criminal penalties for failing to do so or
that Officer McDaniel administered a DL-26 form prior to Angotti giving
consent. See Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa. Super.
2014) (standard and scope of review over questions involving the legality of
sentence is de novo and scope of review is plenary). Moreover, Angotti does
not argue in his brief that his consent was involuntary. Therefore, we deem
it inappropriate to sua sponte raise this issue and, instead, chose to address
only the claim Angotti raised on appeal.



                                            -6-
J-A18018-17



methamphetamines intravenously and Officer McDaniel did not discover any

other drug paraphernalia consistent with intravenous drug use (e.g., spoon,

lighter, cotton, etc.). See Commonwealth v. Johnson, 833 A.2d 260, 262

(Pa. Super. 2003) (facts and circumstances established by Commonwealth in

criminal prosecution need not preclude every possibility of innocence; any

doubts regarding defendant’s guilt may be resolved by fact-finder unless

evidence is so weak and inconclusive that as matter of law no probability of

fact may be drawn from combined circumstances).

     When we construe these facts and the inferences therefrom in the light

most favorable to the Commonwealth as the prevailing party, we conclude

that the evidence was sufficient to establish that Angotti was driving under

the influence of a controlled substance while operating a motor vehicle.

Pettyjohn, supra; Williams, supra.

     Judgment of sentence affirmed.



     Judge    Bowes   joins   the   Memorandum    and   files   a   Concurring

Memorandum in which Judge Ott joins.

     Judge Ott concurs in the result of the Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

                                     -7-
J-A18018-17




Date: 1/30/2018




                  -8-
