J-S48019-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA L. LIVELY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1643 EDA 2017

Appeal from the Judgment of Sentence April 18, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003378-2016

BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 12, 2018

Joshua L. Lively (Appellant) appeals from the judgment of sentence 

imposed after he was convicted of driving under the influence of a controlled 

substance (DUI) – impaired ability and possession of marijuana.1 We affirm.

The trial court summarized the facts and procedural history of this case 

as follows:

Police Officer Shawn Devlin testified that on September 22, 2014, 

at approximately 9:39 p.m., he and his partner, Officer Santos 

(first name not given), were on routine patrol traveling in the area 

of 52nd and Jefferson Streets when he observed [Appellant] 

operating a gray Nissan [A]ltima with Massachusetts license 

plates, run a red light. Officer Devlin immediately activated lights 

and sirens, but [Appellant] did not pull over. Instead, [Appellant] 

pulled into a shopping center east of 52nd Street; he did not pull 

over at the first available opportunity, he continued to drive 

through the parking lot and parked in a parking spot in front of 

the Monster Pet store. Officer Devlin did not believe he was 

attempting to flee; he was just not reacting to the police car 

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1

 75 Pa.C.S.A. § 3802(d)(2); 35 P.S. § 780-113(a)(31).
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behind him. (N.T.[,] 3/2/17, [at] 13-17). When [Appellant] 

eventually pulled over, Officer Devlin exited his vehicle and stated 

he could smell a strong odor of marijuana; the smell was 

incredibly strong the closer he got to the [A]ltima. [Appellant] 

was the only person in the car[. Id. at 17-18.]

* * *

[Appellant] testified that while he did smoke (marijuana) 

earlier that morning, he did not smoke any marijuana in the car. 

He stated that the officer never asked him if he had been smoking. 

He denied running the red light and stated that as soon as the 

light turned green, the officer put on his flashing lights; that he 

pulled over as soon as he could safely do so. ([Id.] at 59-61).

Trial Court Opinion, 11/3/17, at 2-4.

[Appellant] was arrested and [] charged with inter alia, DUI, 

Controlled Substance – Impaired Ability – 1

st Offense, and 

Possession of Marijuana[.]

* * *

[F]ollowing a waiver trial, [Appellant] was found guilty of both 

charges. . . . On April 18, 2017, [Appellant] was sentenced to a 

mandatory minimum sentence of seventy-two (72) hours to six 

(6) months of incarceration. [Appellant] was also ordered to pay 

a One Thousand ($1,000.00) Dollar fine, attend Alcohol Highway 

Safety School, and a twelve (12) month license suspension. No 

further sentence was imposed on the conviction for possession of 

marijuana. [Appellant] filed a Notice of Appeal to the Superior 

Court. Following the receipt of the notes of testimony and 

retaining new counsel, a Statement of Matters Complained of on 

Appeal pursuant to Pa.R.A.P. 1925(b) was ordered. A Statement

of Matters Complained of on Appeal was filed on September 14, 

2017.

Id. at 1-2 (footnote omitted).

On appeal, Appellant presents the following issue for review: “Did not 

the lower court err in finding Appellant guilty of driving under the influence of 

controlled substances under 75 Pa.C.S.[A.] § 3802(d)(2) where the evidence 
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was insufficient to establish that his ability to drive safely was impaired?” 

Appellant’s Brief at 3.2 Specifically, Appellant argues that a conviction under 

Section 3802(d)(2) requires proof of erratic driving demonstrating the inability 

to drive safely. Appellant asserts that “[m]ere proof that an individual has 

consumed intoxicating substances is insufficient to establish guilt under 

[Section] 3802(d)(2).” Appellant’s Brief at 10. Appellant maintains that the 

Commonwealth did not present evidence of his inability to drive safely.

In reviewing a challenge to the sufficiency of the evidence, our standard 

of review is as follows:

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, [t]he 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 

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2

 Appellant raised three additional issues in his Rule 1925(b) statement that 

he has abandoned on appeal.
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defendant’s crimes beyond a reasonable doubt, the appellant’s 

convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013) 

(internal quotations and citations omitted). “Further, the trier of fact, in 

passing upon the credibility of the witnesses, is free to believe all, part, or 

none of the evidence.” Commonwealth v. Rivera, 983 A.2d 1211, 1220 

(Pa. 2009) (quotations and citations omitted).

The trial court summarized the applicable law and Officer’s Devlin’s 

testimony as follows:

[Appellant] challenges the sufficiency of the evidence for his 

conviction under 75 Pa.C.S.A. § 3802(d)(2). Pursuant to that 

statute:

(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). The Superior Court has emphasized 

that “Section 3802(d)(2) does not require that any amount or 

specific quantity of the drug be proven in order to successfully 

prosecute under that section.” Commonwealth v. Williamson, 

962 A.2d 1200, 1204 (Pa. Super. 2008) (emphasis in original). 

Rather, the Commonwealth must simply prove that, while driving 

or operating a vehicle, the accused was under the influence of a 

drug to a degree that impaired his or her ability to safely drive 

that vehicle. Id.
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In this matter, Officer Devlin testified that when [Appellant] 

eventually pulled over, he could smell an incredibly strong odor of 

marijuana the closer he got to the vehicle [Appellant] was driving. 

[Appellant] was the only person in the car and Officer Devlin 

described him as having watery, glassy, somewhat bloodshot 

eyes; he fumbled with his paperwork, and his speech was slow, 

drawn out, and somewhat mumbled. Also, a blunt of a marijuana 

cigar was recovered from the floorboard between the driver’s seat 

and center console. Officer Devlin believed [Appellant] was DUI 

based on what he smelled and what he observed. Moreover, 

[Appellant] stated that he had smoked marijuana about two (2) 

hours prior to being pulled over. Additionally, Officer Farrell 

testified that he observed [Appellant] to have glassy eyes, and 

slow, lethargic movement, speech and walk. According to Officer 

Farrell, his observations of [Appellant] were consistent with 

someone who [was] under the influence of marijuana. 

Considering the totality of the above circumstances, viewed in the 

light most favorable to the Commonwealth, there was sufficient 

evidence to establish that [Appellant] was unable to safely operate 

his vehicle due to the influence of marijuana.

Trial Court Opinion, 11/3/17, at 5-7.

Based on our review of the certified record on appeal, including the 

transcripts of Appellant’s bench trial, we conclude that the trial court has 

accurately described the facts and circumstances surrounding Appellant’s 

arrest. See N.T., 3/2/17, at 13-19, 43-44, 64. We agree that the evidence 

was sufficient to sustain Appellant’s conviction under Section 3802(d)(2). The 

record reflects that Appellant’s physical condition at the time of his arrest was 

indicative of someone who was under the influence of marijuana to a degree 

that impaired his ability to safely operate his vehicle.

With respect to Appellant’s claim that a conviction under Section 

3802(d)(2) requires the Commonwealth to present evidence that he was 
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driving erratically or in an unsafe manner and the Commonwealth did not do 

so, this argument does not warrant relief.

In support of this claim, Appellant relies on Commonwealth v. Gause, 

164 A.3d 532 (Pa. Super. 2017). Gause, however, does not, as Appellant 

claims, stand for the proposition that the Commonwealth must present 

evidence of erratic or dangerous driving in order to support a conviction under 

Section 3802(d)(2). Rather, in Gause, this Court addressed the issue of 

whether expert testimony was needed to determine if a suspect exhibiting 

“eyelid tremors” indicated that the individual was under the influence of 

marijuana and could not safely operate a vehicle. This Court stated that

“eyelid tremors” were “not the typical and obvious indicia of marijuana use.” 

Id. at 539. Consequently, we held that expert testimony was necessary “to 

explain whether ‘eye tremors,’ or ‘body tremors,’ would indicate that someone 

was under the influence of marijuana and that this impaired his ability to safely 

drive, in violation of [S]ection 3802(d)(2).” Id. “Unlike staggering, 

stumbling, glassy or bloodshot eyes, and slurred speech, the ‘ordinary signs 

of intoxication discernable by a layperson,’ eye tremors are not an ordinary 

sign of ingestion of a controlled substance, in particular, marijuana.” Id.

(italics in original).

In this case, the record reflects that two police officers observed 

Appellant with watery, glassy, and bloodshot eyes, and noticed that his 

movements and speech were slow and lethargic. N.T., 3/2/17, at 13-19, 43-
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44. One of the officers also reported that Appellant fumbled his paperwork. 

Id. at 18. Accordingly, the evidence was sufficient to sustain Appellant’s 

conviction under Section 3802(d)(2). We emphasize, to the extent the 

Commonwealth was even required to present evidence that Appellant was 

driving erratically or in an unsafe manner, the record reveals that the reason 

the police stopped Appellant’s vehicle was because he ran a red light at an

intersection. Id. at 14.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/18