J-S81040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    LARRY SHEROD BOONE,

                             Appellant                No. 883 MDA 2017


              Appeal from the Judgment of Sentence April 26, 2017
               in the Court of Common Pleas of Lancaster County
               Criminal Division at No.: CP-36-CR-0005209-2016


BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                             FILED MARCH 14, 2018

        Appellant, Larry Sherod Boone, appeals from the judgment of sentence

imposed on April 26, 2017, following his non-jury trial conviction of driving

under the influence (DUI) of a controlled substance—impaired ability,1 and

related summary offenses. He challenges the sufficiency of the evidence to

prove that he was under the influence of a drug that impaired his ability to

safely drive. We affirm.

        We take the factual and procedural history in this matter from our

review of the certified record and the trial court’s July 14, 2017 opinion.

              On March 17, 2016, at approximately 11:30 p.m., Trooper
        [Harold] Flemming[, of the Pennsylvania State Police,] was on
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S.A. § 3802(d)(2).
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     patrol duty, stopped at a red light at the intersection of Oak View
     Drive and Route 30 in East Lampeter Township, Lancaster County,
     when his attention was drawn to a vehicle operated by
     [Appellant], traveling west with an inoperable passenger side
     headlight.    Trooper Flemming stopped the vehicle for the
     inoperable headlight on westbound Route 30, near Greenfield
     Road. Video and audio recordings were made of the traffic stop
     and were introduced in evidence at trial.

           After approaching the driver’s side of the vehicle[,] and
     while explaining the reason for the stop to [Appellant], Trooper
     Flemming smelled the odor of marijuana emanating from the
     vehicle or [Appellant’s] person and observed [Appellant] to be
     slow, sluggish, somewhat confused about the reason for the
     stop[,] and to have red, bloodshot glassy eyes. When asked for
     his driver’s license, registration and proof of insurance,
     [Appellant] “was kind of like having a hard time trying to find that
     and get that together . . . .” ([N.T. Trial, 3/01/17,] at 15).
     [Appellant] produced his vehicle registration and insurance
     documents, but stated that his driver’s license was suspended.
     Trooper Flemming confirmed that his license was suspended.

            Because he “was getting cues and clues of [Appellant] being
     impaired,” Trooper Flemming asked [Appellant] to get out of the
     vehicle so he could investigate further. (Id. at 16). The Trooper
     could still smell a strong odor of marijuana after [Appellant] was
     outside the vehicle. Questioned about the smell of marijuana,
     [Appellant] initially said that he had been with friends in
     Philadelphia who were smoking it. In response to the Trooper’s
     question about alcohol consumption, [Appellant] denied drinking
     and said he just smoked some marijuana. He then expanded this
     statement to indicate he had smoked marijuana a couple hours
     earlier.

            As part of his investigation, Trooper Flemming had
     [Appellant] perform two standardized field sobriety tests, the
     walk-and-turn and one-leg-stand tests, to test [Appellant’s] motor
     skills and divided attention. [Appellant] did not indicate any
     reason he would be unable to perform the tests and the surface
     where the test was administered—dry, flat concrete—presented
     no problems.

(Trial Court Opinion, 7/14/17, at 2-4) (some record citations omitted).




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        At trial, Trooper Flemming testified that Appellant could not keep his

balance during the walk-and-turn test, and that Appellant exhibited four of

eight possible indicators (two indicators are needed to demonstrate possible

impairment). (See id. at 4). Trooper Flemming explained that during the

one-leg-stand test, Appellant exhibited two of four indicators (two indicators

needed to show impairment). (See id.). Finally, Trooper Flemming explained

that he administered the Advanced Roadside Impaired Driving Enforcement

(ARIDE) Romberg balance test,2 during which Appellant exhibited major eyelid

tremors, indicating that he was under the influence of marijuana. (See id. at

4-5).

        The court conducted a non-jury trial on March 1, 2017, after which it

found Appellant guilty of DUI, driving while operating privileges were

suspended, and no headlights. The court found Appellant not guilty of careless

driving.    On April 26, 2017, the court sentenced him to six months of

intermediate punishment. This timely appeal followed.3

        Appellant presents one question on appeal: “Did the trial court err in

finding    [him]   guilty   of   DUI   where     the   evidence   presented   by   the



____________________________________________


2In 2014, Trooper Flemming underwent ARIDE training to help identify when
operators are under the influence of controlled substances. (See N.T. Trial,
3/01/17, at 6, 36).

3 Pursuant to the court’s order, Appellant filed his concise statement of errors
complained of on appeal on June 22, 2017. The court entered its opinion on
July 14, 2017. See Pa.R.A.P. 1925.

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Commonwealth was insufficient to prove beyond a reasonable doubt that [his]

ability to safely drive was impaired?” (Appellant’s Brief, at 4).

      In his issue, Appellant claims that the evidence was insufficient to

convict him of driving under the influence. (See id. at 10-12). Specifically,

he argues that, although he admitted to smoking marijuana three or four

hours prior to driving, “the Commonwealth failed to produce evidence that

showed [his] ability to safely drive was impaired.” (Id. at 10; see id. at 10-

11). We disagree.

      In reviewing a challenge to the sufficiency of the evidence, our
      standard of review is as follows:

                   The standard we apply 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 fact-finder to find every element of the
            crime beyond a reasonable doubt. In applying the
            above test, we may not weigh the evidence and
            substitute our judgment for the fact-finder.         In
            addition, we 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 fact-finder
            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.



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           Appellant was convicted of DUI under Section 3802(d)(2)
      which provides:

            § 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.A. § 3802(d)(2). . . .

Commonwealth v. LaBenne, 21 A.3d 1287, 1289–90 (Pa. Super. 2011)

(case citation omitted).

      In Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011), our Supreme

Court held that evidence was sufficient to prove that appellant violated section

3802(d)(2), where such evidence consisted of the testimony of two Troopers

who testified as to her behavior, demeanor, unsteadiness, and inability to

perform field sobriety tests, together with appellant having conceded to taking

a controlled substance earlier that day. See Griffith, supra at 1240. The

Court also held that expert testimony is not a mandatory requirement under

section 3802(d)(2) in order to establish that a defendant’s inability to drive

safely was caused by ingestion of a drug. See id. at 1238.




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      Furthermore, even absent evidence of erratic or unsafe driving,

“[e]vidence that the driver was not in control of himself, such as failing to

pass a field sobriety test,” may establish that the driver was incapable of safe

driving. Commonwealth v. Smith, 831 A.2d 636, 638 (Pa. Super. 2003),

appeal denied, 841 A.2d 531 (Pa. 2003) (concluding that evidence of failed

field sobriety tests established that driver was under influence of alcohol to

extent he was incapable of safe driving, notwithstanding absence of evidence

of erratic or unsafe driving).

      In the instant case, Trooper Flemming testified that he smelled

marijuana emanating from Appellant’s vehicle and Appellant was slow and

sluggish responding to things. (See N.T. Trial, at 15-16). Appellant admitted

to smoking some marijuana a couple hours prior to the arrest. (See id. at 16-

17). Furthermore, during both field sobriety tests, Appellant demonstrated

cues that indicated possible intoxication. (See id. at 25, 28). Finally, Trooper

Flemming testified that, after administering the ARIDE Romberg balance test,

he observed Appellant had major eyelid tremors, which are indicative of

marijuana use.    (See id. at 29-31).    Finally, he opined that based on his

training and experience and observations, Appellant was driving under the

influence of a drug, which impaired his ability to drive safely. (See id. at 31).

      Upon review, we conclude that the evidence, viewed in the light most

favorable to the Commonwealth as verdict winner, was sufficient to prove that

Appellant was under the influence of a drug such that he was incapable of




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safely driving. See Griffith, supra at 1240; LaBenne, supra at 1289–90.

Appellant’s challenge to the sufficiency of the evidence is meritless.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2018




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