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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT LIONEL MATTHEWS                     :
                                               :
                       Appellant               :   No. 1151 WDA 2019

       Appeal from the Judgment of Sentence Entered February 12, 2019
      In the Court of Common Pleas of Fayette County Criminal Division at
                        No(s): CP-26-CR-0000947-2018


BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 24, 2020

        Robert Lionel Matthews (Matthews) appeals nunc pro tunc from the

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

(trial court) following his jury conviction of driving under the influence of a

controlled substance (DUI) and recklessly endangering another person

(REAP).1     Matthews challenges the sufficiency of the evidence supporting

these convictions. We affirm.

        On November 23, 2017, just after 7:00 a.m., Matthews received a dose

of methadone at a clinic as treatment for his addiction to pain medication. He

changed a flat tire after leaving the clinic and proceeded to travel north on the

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   75 Pa.C.S. § 3802(d)(2) and 18 Pa.C.S. § 2705.
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roadway. Joseph Webster (Webster) was also travelling behind Matthews in

the northbound lane. Webster observed Matthews’ vehicle begin to straddle

the two travel lanes heading north and then started to move into the

southbound lane. Webster also observed Matthews make a rocking motion

and slump down in the seat. Matthews drove through an empty parking lot,

ran into a stop sign, crossed a street, and moved into the driveway of David

Pato’s (Pato) residence. Matthews’ vehicle then collided into Pato’s garage.

The garage was attached to the residence. Pato was in the residence laying

down in his bed, 15 feet away from the crash site. Webster exited his vehicle

and saw Matthews slumped over into the front seat and called 911.

       Pennsylvania State Police Officer Cameron Craig responded to the scene

and observed that Matthews’ legs were pinned in the drivers’ seat area of his

vehicle and his torso was over into the passenger area. Matthews explained

that he had just come from the methadone clinic located a quarter mile down

the road and that he had ingested methadone. Matthews’ speech was slurred

and slow and his breathing was slow as well. Officer Craig obtained a search

warrant for a blood draw, which showed positive findings for methadone.

       On February 4, 2019, following a jury trial, Matthews was found guilty

of DUI, REAP and three summary traffic offenses.2 On February 12, 2019, the

trial court sentenced him to a term of intermediate punishment of 24 months,


____________________________________________


2 Driving on Roadways Laned for Traffic, Reckless Driving, and Failure to Use
a Seat Belt. See 75 Pa.C.S. §§ 3309(1), 3736(a), and 4581(a)(2)(ii).

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with 180 days served on house arrest with electric monitoring.          Although

Matthews did not initially file a timely direct appeal, the trial court later

entered an order restoring his direct appeal rights nunc pro tunc on June 7,

2019. Matthews filed his notice of appeal more than 30 days later on July 30,

2019.     He and the trial court complied with Rule 1925.          See Pa.R.A.P.

1925(a) - (b).

        On appeal, Matthews challenges the sufficiency of the evidence

supporting his DUI and REAP convictions. Before reaching the merits of these

issues, we must address the timeliness of this appeal.

        “When the trial court issues an order reinstating an appellant’s appeal

rights, the appellant must file the appeal within 30 days of the order

reinstating the appeal rights.” Commonwealth v. Wright, 846 A.2d 730,

734–35 (Pa. Super. 2004) (citation omitted). However, quashal of an appeal

is not warranted, even when filed past the 30-day deadline, if the trial court’s

order restoring an appellant’s direct appeal rights did not advise him of the

thirty-day requirement. See id.

        As previously noted, the record reflects that Matthews filed his notice of

appeal more than 30 days after the trial court reinstated his direct appeal

rights. We nonetheless decline to quash this appeal because the court’s order

restoring his direct appeal rights did not inform him of the 30-day deadline.

We will, therefore, consider Matthews’ sufficiency claims on the merits.




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       “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.”

Commonwealth v. Reed, 216 A.3d 1114, 1119 (Pa. Super. 2019) (citation

omitted). “In applying the above test, we may not weigh the evidence and

substitute our judgment for the fact-finder.”      Id. (citation omitted).    “The

Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence.” Id.

(citation omitted).    Finally, the jury, while assessing the credibility of

witnesses and the weight of the evidence produced, is free to believe all, part

or none of the evidence. See id.

       Matthews first challenges the sufficiency of the evidence supporting his

DUI conviction, arguing that the Commonwealth failed to demonstrate that he

was under the influence of a prescription medication to a degree that impaired

his ability to drive his vehicle safely.     (See Matthews’ Brief, at 6-9).    He

maintains that he was on a therapeutic level of methadone at the time of the

accident. (See id.).

       The applicable provision of the DUI statute states:

       (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:

                               *     *     *


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              (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)(2).

       This section does not require proof of a specific amount of a drug in the

individual’s system. See Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.

Super. 2012). “It requires only proof that the driver was under the influence

of a drug or combination of drugs to a degree that the ability to drive is

impaired.” Id. (citing Commonwealth v. Williamson, 962 A.2d 1200, 1204

(Pa. Super. 2008) (testimony of erratic driving and intoxicated demeanor,

coupled with proof that drugs were present, were together sufficient to prove

that operator’s ability to drive safely was impaired).

       At trial, Matthews testified that on the morning of the collision, he

received a 30-milligram dose of methadone. (See N.T Trial, 2/04/19, at 45-

46).    Webster testified that he was driving directly behind Matthews

immediately before the accident, and that he observed Matthews’ vehicle

straddle the northbound lanes of traffic. (See id. at 8). Matthews crossed

into the opposite southbound lane of traffic and ran into a stop sign. (See

id.). Webster observed Matthews slump down in the front seat before the

crash, and Matthews remained slumped over across the seat after the

accident. (See id. at 8-9). The laboratory report showed a positive result for

methadone in Matthews’ blood and explained that “[a]dverse affects from

methadone are characterized by stupor, lethargy, pupillary constriction,

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hypotension and coma.”        (Id. at 33).    Officer Craig testified that his

observation of Matthews after the crash was consistent with the adverse

reactions listed in the report. (See id. at 35).

      Viewing the facts in the light most favorable to the Commonwealth, we

conclude that the evidence was sufficient to permit the jury to find that

Matthews operated his vehicle while under the influence of a drug that

impaired his ability to control its maneuvering.    Matthews drove erratically

outside of his lane on the roadway, struck a stop sign, and lost control of his

vehicle, landing in Pato’s garage.     Thus, Matthews’ first sufficiency claim

merits no relief.

      Matthews next argues that the evidence supporting his REAP conviction

was insufficient because he did not place anyone in fear of serious bodily injury

or death. (See Matthews’ Brief, at 4). He maintains that the Commonwealth

presented no evidence that he had driven carelessly or at an excessive speed.

(See id. at 10).

      A defendant commits the offense of REAP “if he recklessly engages in

conduct which places or may place another person in danger of death or

serious bodily injury.” 18 Pa.C.S. § 2705. The Commonwealth must prove

that the defendant had an actual ability to inflict harm and that danger was

created. See Commonwealth v. Martuscelli, 54 A.3d 940, 949 (Pa. Super.

2012). As the Commonwealth points out, that fear of death or serious bodily

is not an element of the crime. (See Commonwealth’s Brief, at 6).


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      The evidence at trial established that Matthews recklessly engaged in

conduct that placed Pato in danger of death or serious bodily injury.      The

record reflects that Matthews received a dose of methadone, changed a flat

tire, and drove erratically from the clinic. (See N.T. Trial, at 8, 46-47). He

then collided into Pato’s garage, while Pato was in his attached residence,

laying only 15 feet away from the point of impact of Matthews’ vehicle. (See

id. at 18-19). By erratically driving his vehicle before crashing it headlong

into Pato’s residence in close proximity to where Pato was resting, Matthews

clearly placed Pato in danger of both death and serious bodily injury.

Accordingly, the evidence was sufficient for the jury to conclude that Matthews

was guilty of REAP.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2020




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