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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 substance1and 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).
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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 
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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). 
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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 
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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)
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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.
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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
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Date: 1/30/2018