J-S01018-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

MARIA DANIECE STARVIS 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1295 MDA 2017

Appeal from the Judgment of Sentence June 28, 2017

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0007679-2015

BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.

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

Maria Daniece Starvis (“Appellant”) appeals from the judgment of 

sentence entered after the trial court convicted her of driving under the 

influence (“DUI”) of a controlled substance (marijuana).

1 Upon review, we

affirm.

The trial court detailed the underlying facts as follows:

In a Non-Jury trial, the Commonwealth presented one 

witness, who was Trooper Raymond Rutter of the 

Pennsylvania State Police. At the time of the nonjury trial, 

Trooper Rutter had worked since 2013 for the Pennsylvania 

State police, where he was trained about driving under the 

influence, including ARIDE, and training on standardized 

field sobriety tests. The trooper had been a part of over 100 

DUI investigations, and had made around 80 arrests for 

DUI. The trooper explained that he looked at the totality of 

the circumstances and used his training and experience 

____________________________________________

1 75 Pa.C.S.A. § 3802(d)(2).
J-S01018-18

- 2 -

when investigating a DUI. The totality of the circumstances 

refers to the vehicle's motions, such as weaving, going off 

the road, crossing either the left or right lines, varying 

speeds, as well as the officer's interactions with the driver. 

When the officer interacts with the driver, there are several 

different things that may indicate DUI, including field testing 

results, glassy and bloodshot eyes, drug or alcohol odors, 

slurred speech and other interactions during the stop. 

The trooper testified that at 2:15 a.m. on September 

21, 2015, the trooper was driving on Interstate 83 when he 

observed Appellant's vehicle weaving back and forth. He 

followed the vehicle and observed it crossing the fog line 

four times and observed its speed varying. Then, the 

trooper conducted a stop, suspecting a DUI. Appellant was 

the driver of the vehicle.

When the trooper interacted with [Appellant], he 

observed that she had dilated pupils, and bloodshot, glassy 

eyes. He also smelled a strong odor of marijuana coming 

from the vehicle. During his testimony, the trooper 

explained that the bloodshot, glassy eyes can indicate 

impairment from marijuana.

Then, the trooper asked Appellant about her 

marijuana use. At first, Appellant said that it had been a 

few months since she last smoked marijuana. Next, 

Appellant said she had smoked marijuana earlier that day. 

Then, when the trooper asked how many hours ago she 

smoked, Appellant said four hours, but then she added "two 

songs." The trooper assumed Appellant may have been 

referencing karaoke or songs as a time frame, though he 

was unsure what she meant by the time frame of “two 

songs."

Based on the totality of the circumstances, the trooper 

arrested Appellant for suspicion of DUI and transported her 

for blood draw. Specifically, the trooper indicated that the 

totality of the circumstances suggested that she was under 

the influence of marijuana.

Field sobriety tests were performed, though some 

were not done or were modified because Appellant had 

recent surgery on her leg and because she had a rod in her 
J-S01018-18

- 3 -

leg. Specifically, the trooper administered the modified 

Romberg and lack of convergence tests.

In the modified Romberg test, the trooper told 

Appellant to tilt her head back with her eyes closed and, 

then, when she estimated the 30 seconds was over, to bring 

her head down and tell the trooper to stop. For suspected 

marijuana use, the officer looks for whether the eyelids 

flutter as well as the variation from the 30 seconds during 

that test. When Appellant performed the test, she stopped 

at 44 seconds, rather than 30 seconds. This indicated to the

trooper that there was some impairment.

Then, the lack of convergence test was performed.

During the lack of convergence test, the officer looks for 

whether or not the eyes converge when the officer brings a 

pen or finger doing circles slowly into the nose's bridge. In 

other words, the test is to see if the eyes cross. During the 

test, the officer observed a lack of convergence in that 

Appellant's right eye did not converge, which further 

indicated to the officer that there was impairment.

[Appellant was charged with DUI and proceeded to a

bench trial.] During the non-jury trial, the dashcam video 

was played, which showed the Appellant's vehicle crossing 

the fog line several times as well as the field sobriety 

testing.

Trial Court Opinion, 10/5/17, at 2-6 (citations to notes of testimony and 

footnotes omitted).

At the conclusion of trial on June 1, 2017, the trial court found Appellant

guilty of DUI under Section 3802(d)(2).

2

 On June 28, 2017, the trial court 

____________________________________________

2 Section 3802(d)(2) states in relevant part:

(d) Controlled substances – An individual may not drive, 

operate or be in actual physical control of the 
J-S01018-18

- 4 -

sentenced Appellant to 72 hours to six months’ imprisonment, and imposed a 

$1,000 fine and court costs. Appellant filed a timely post-sentence motion on 

June 29, 2017, in which she challenged the weight of the evidence and 

requested a new trial. The trial court denied Appellant’s motion on July 24, 

2017, and Appellant filed this timely appeal. Both Appellant and the trial court 

have complied with Pa.R.A.P. 1925. 

Appellant presents a single issue for our review: 

Whether the trial court erred in denying [Appellant’s]

challenge to the weight of the evidence where the 

Commonwealth may have shown ingestion of marijuana but 

failed to prove any actual impairment in light of her driving, 

coherence, and cooperation.

Appellant’s Brief at 4.

Appellant argues that the trial court erred in denying her post-sentence 

motion, and claims her DUI conviction was contrary to the weight 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). 

The trial court nolle prossed counts 1 and 2, DUI under Sections 3802(d)(1)(i) 

and 3802(d)(1)(iii), respectively, and found Appellant not guilty of counts 4 

and 5, summary traffic offenses. See N.T., 6/1/2017, at 39. 
J-S01018-18

- 5 -

evidence. Our standard of review for whether a verdict is against the weight 

of the evidence is well settled:

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. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and 

internal citations omitted). A “true weight of the evidence challenge concedes 

that sufficient evidence exists to sustain the verdict but questions which 

evidence is to be believed.” Commonwealth v. Thompson, 106 A.3d 742, 

758 (Pa. Super. 2014) (internal citation omitted). To prevail on a weight of 

the evidence challenge, “the evidence must be so tenuous, vague, and 

uncertain that the verdict shocks the conscience of the court.” 

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015) (internal 

quotations and citations omitted), appeal denied, 138 A3d 4 (Pa. 2016).

This Court must consider whether the trial court’s decision constituted a 
J-S01018-18

- 6 -

palpable abuse of discretion.3 Where the record adequately supports the trial 

court, the trial court has acted within the limits of its judicial discretion.

Appellant argues that the weight of the evidence shows that although 

she may have smoked marijuana, such consumption did not impair her 

driving. Appellant’s Brief at 12. Appellant further contends that the “[f]ootage 

of her driving shows no serious infractions, she was coherent and cooperative 

after being pulled over, and the tests that purportedly established impairment 

were not standardized and were performed by an officer who was not a drug 

recognition expert.” Id.

In arguing that the trial court abused its discretion, Appellant relies, in 

part, upon this Court’s decision in Commonwealth. v. Etchison, 916 A.2d 

1169 (Pa. Super. 2007). Appellant contends that Etchison requires proof of 

actual, present impairment, and that “evidence of marijuana ingestion is not 

enough to sustain a conviction like [hers].” Appellant’s Reply Brief at 1.

Appellant further relies on our recent decision in Commonwealth v. Gause, 

164 A.3d 532, 537 (Pa. Super. 2017), appeal denied, 173 A.3d 267 (Pa. 

2017). She attempts to discredit, inter alia, her “eyelid tremors and 

perception of time during the Romberg test” and the opinion of “a non-expert 

in drug recognition,” by citing several secondary sources that address the 

____________________________________________

3 An abuse of discretion may be found when the trial court reaches a 

manifestly unreasonable judgment, misapplies the law, or bases its decision 

on partiality, prejudice, bias, or ill-will. See, e.g., Clay, 64 A.3d at 1056. 
J-S01018-18

- 7 -

supposed “peculiarities of marijuana intoxication.” See Appellant’s Brief at 

13-15; Appellant’s Reply Brief at 3-6. The Commonwealth responds that 

Appellant “makes light of the substantial amount of evidence presented to 

establish her impairment,” and argues that Appellant attempts to challenge 

the sufficiency of the evidence.

4 Brief of Commonwealth at 18. We agree that 

Appellant fails to articulate a viable weight claim. 

A new trial is warranted only when the verdict is so contrary to the 

evidence that it shocks one's sense of justice. See, e.g., Commonwealth v. 

Konias, 136 A.3d 1014, 1022 (Pa. Super. 2016) (internal quotations and 

citations omitted), appeal denied, 145 A.3d 724 (Pa. 2016). Here, the trial 

court found no merit to Appellant’s weight claim, and explained: 

[T]his court found that there was evidence of driving 

impairment based on the trooper’s testimony and the 

dashcam video. While Appellant was driving, she was 

weaving to the extent that she crossed over the line multiple 

times, and her speed varied. Contrary to Appellant’s 

argument, one turn signal and pulling over does not mean 

she was not impaired. Those actions mean she had some 

presence of mind to use a turn signal and not flee—plenty 

of DUI drivers obey some of the traffic laws and some pull 

over without fleeing. However, they are still impaired. In 

addition, during the stop, the trooper asked her several 

times when she had last smoked, and her third answer was 

four hours and then “two songs” which did not make much 

sense to the trooper, or to the [trial c]ourt for that matter.

____________________________________________

4 Appellant responds to the Commonwealth’s assertion: “To be clear, it is a 

weight claim. This is because there is evidence in the record that, if properly 

credited and accorded significance, would indicate impairment: [Appellant’s] 

admitted ingestion of marijuana; her performance on the tests [Trooper] 

Rutter administered; and her minor driving infractions.”” Appellant’s Reply 

Brief at 4. 
J-S01018-18

- 8 -

. . . Rather than focusing solely on the Romberg test, this 

[c]ourt had also taken a look at the totality of the 

circumstances in finding Appellant guilty of driving under the 

influence.

Trial Court Opinion, 10/5/17, at 8-9 (emphasis original).

It is well settled that the trial court, as factfinder, is free to believe all, 

part, or none of the evidence adduced at trial. See, e.g., Konias, 136 A.3d 

at 1022. The trial court in this case found Trooper Rutter’s testimony to be 

credible. Because the trial court’s credibility determinations are supported by 

the record, we will not disturb them on appeal. 

For the above reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/18