J-S30045-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL TERRENCE WEST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1646 MDA 2023

Appeal from the Judgment of Sentence Entered October 31, 2023

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

No(s): CP-36-CR-0003614-2022

BEFORE: PANELLA, P.J.E., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED: OCTOBER 7, 2024

Daniel Terrence West appeals from the October 31, 2023 aggregate 

judgment of sentence of 63 days’ to 6 months’ imprisonment imposed after

he was found guilty in a bench trial of three counts of driving under the 

influence of alcohol or controlled substance (“DUI”), driving while operating 

privileges are suspended or revoked, and carrying loaded weapons other than 

firearms.

1

 After careful review, we affirm the judgment of sentence.

The trial court summarized the relevant facts of this case as follows:

The Commonwealth’s only witness was Corporal 

James Spencer. Testimony began with Corporal

Spencer’s background and experience. Corporal 

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. §§ 3802(a)(1), (d)(2), and (d)(3); 75 Pa.C.S.A. § 1543(a); and

18 Pa.C.S.A. § 6106.1(a), respectively.
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Spencer had been with Pennsylvania State Police for

over sixteen years by the time of trial and was serving 

as a patrol unit supervisor for Troop J, Lancaster 

County, Pennsylvania. Corporal Spencer completed 

the 27-week training with Pennsylvania State Police

academy during which time he received instruction on 

the enforcement and detection of driving under the 

influence. Corporal Spencer had training in advanced 

roadside testing, standardized field sobriety testing, 

and advanced roadside impairment detection

enforcement. Corporal Spencer explained that these 

courses help one to better understand a person’s 

ability for divided attention tasks which is what driving

is, and that helps one understand the impairment 

level of the person who is driving.

Corporal Spencer testified that things one would see 

and observe include odors, eyes whether glassy or 

blood shot, HGN. Odors officers are trained to detect 

are for marijuana and alcohol. He has participated in 

over two hundred DUI investigations as well as 

observed people under the influence in other

investigations.

On July 1, 2022, Corporal Spencer was assigned as 

the site supervisor for a DUI checkpoint located on the 

3400 block of Lincoln Highway East in Paradise 

Township. At 0205 hours, on July 2, 2022, 

[Appellant], driving a Chevy truck pulled into the 

checkpoint. While speaking to [Appellant], Corporal

Spencer noticed a pool cue bag sitting in the front seat 

and hanging outside of the bag was a shotgun handle 

for a Mossberg pistol shotgun. Corporal Spencer also 

noticed the odor of burnt marijuana. 

Corporal Spencer asked [Appellant] whether he had a 

concealed carry permit for the shotgun. [Appellant] 

provided Corporal Spencer with his photo ID and when 

Corporal Spencer stated he needed to provide a 

permit, [Appellant] answered he did not need to 

provide him with one.

Corporal Spencer observed [Appellant’s] motor skills 

to be slow and his eyes were a little bloodshot. When 
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he asked [Appellant] to step out of his vehicle,

Corporal Spencer observed [Appellant] to be very

slow and deliberate with his actions.

Corporal Spencer asked [Appellant] whether he would 

submit to standardized field sobriety tests but 

[Appellant] refused. [Appellant] also refused to

participate in a drug recognition evaluation. Corporal 

Spencer then read [Appellant]the DL-26 form which 

contains the chemical testing warnings and rights. 

Throughout the interaction [Appellant] remained 

silent and he refused to sign the form. [Appellant]

was then placed under arrest. 

Corporal Spencer testified that he looks at the totality 

of the circumstances to determine whether a person 

is able to get back into their vehicle or whether they 

should be arrested. While he was unable to conduct a 

field sobriety test, Corporal Spencer testified that 

there are other indicators enabling him to form an 

opinion as to [Appellant’s] ability to drive. The first 

indicator was that there was an odor of burnt

marijuana coming from the car. The second indicator 

was that [Appellant] had glassy, bloodshot eyes. The 

third indicator was the trouble [Appellant] had in 

producing the requested conceal carry permit card.

Additionally, when [Appellant] came out of his vehicle, 

he was slow, sluggish, and not answering questions. 

He also walked slowly from his vehicle to the 

checkpoint area. ln addition to these indicators, 

Corporal Spencer testified that after [Appellant] got 

out of the vehicle, he observed an empty mini bottle 

in the center console and when he searched 

[Appellant] incident to arrest, he obtained a red glass 

smoking device from [Appellant]. Based upon this, it 

was Corporal Spencer’s opinion that [Appellant] was

under the influence of some type of narcotic that 

inhibited his ability to drive a motor vehicle. 

Trial court opinion, 1/4/24 at 3-5 (citations to notes of testimony omitted). 

On August 21, 2023, Appellant proceeded to a bench trial before the 

Honorable Jeffrey A. Conrad and was subsequently found guilty of three 
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counts of DUI, driving while operating privileges are suspended or revoked, 

and carrying loaded weapons other than firearms. As noted, Appellant was 

sentenced to 63 days’ to 6 months’ imprisonment on October 31, 2023. 

Appellant did not file any post-sentence motions. This timely appeal followed 

on November 30, 2023.2

Appellant raises the following issue for our review:

I. Was the evidence presented by the 

Commonwealth insufficient to prove beyond a 

reasonable doubt that [Appellant] was guilty of 

[DUI] pursuant to 75 Pa.C.S.A. § 3802(d)(3), 

[DUI] pursuant to 75 Pa.C.S.A. § 3802(d)(2), 

and/or [DUI] pursuant to 75 Pa.C.S.A. 

§ 3802(a)(1) where there was insufficient 

evidence to prove that [Appellant] was under 

the influence of a combination of alcohol and a 

drug, was under the influence of a drug, and/or 

was under the influence of alcohol to a degree 

that impaired his ability to drive safely?

Appellant’s brief at 6. 

Appellant’s solo issue on appeal is that the Commonwealth presented 

insufficient evidence to sustain his convictions for three counts of DUI under 

Sections 3802(a)(1), (d)(2), and (d)(3) of the Vehicle Code. Id. at 12.

In reviewing the sufficiency of the evidence, we must 

determine whether the evidence admitted at trial and 

all reasonable inferences drawn therefrom, viewed in 

the light most favorable to the Commonwealth as 

verdict winner, is sufficient to prove every element of 

the offense beyond a reasonable doubt. As an 

appellate court, we may not re-weigh the evidence 

and substitute our judgment for that of the fact-

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2 Appellant and the trial court have complied with Pa.R.A.P. 1925(b).
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finder. Any question of doubt is for 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. 

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009) (citations 

omitted), appeal denied, 4 A.3d 1054 (Pa. 2010). 

A person will be found guilty of DUI – general impairment if they are 

found to have driven, operated or to have been in actual physical control of 

the movement of a vehicle “after imbibing a sufficient amount of alcohol such 

that the individual is rendered incapable of safely driving, operating or being 

in actual physical control of the movement of the vehicle.” 75 Pa.C.S.A. 

§ 3802(a)(1). A person will be found guilty of DUI – controlled substance in 

violation of Section 3802(d)(2) if they drive a vehicle “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.” Id. at § 3802(d)(2). Section 3802(d)(3) prohibits an 

individual from driving a vehicle where the individual is “under the combined 

influence of alcohol and a drug or combination of drugs to a degree which 

impairs the individual’s ability to safely drive ... the vehicle.” Id.

§ 3802(d)(3).

Viewing the evidence in the light most favorable to the Commonwealth, 

the verdict winner, we find that there was ample evidence to sustain 

Appellant’s convictions for three counts of DUI under Sections 3802(a)(1), 

(d)(2), and (d)(3). As noted, the evidence presented by the Commonwealth 
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at trial established that in the early morning hours of July 2, 2022, Corporal 

Spencer approached Appellant’s truck while it was stopped at a DUI checkpoint 

and smelled an odor of burnt marijuana emanating from the vehicle. Notes 

of testimony, 8/21/23 at 16-20. Corporal Spencer, a then 15-year veteran of 

the Pennsylvania State Police who has undergone extensive training in DUI 

detection, further observed that Appellant exhibited bloodshot eyes, slow and 

deliberate movements, and difficulty in providing his conceal carry permit

upon request. Id. at 5-6, 21-23. Corporal Spencer also testified that he 

observed an empty liquor bottle in the center console of Appellant’s vehicle 

and that drug paraphernalia – a glass pipe “commonly used to smoke 

marijuana” – was ultimately found on his person. Id. at 23, 41-42, 49-50. 

After exiting he vehicle, Corporal Spencer continued to observe that 

Appellant’s behavior was “slow” and “sluggish,” and that Appellant declined to 

participate in field sobriety testing and refused to submit to a chemical test or 

sign the DL-26 consent form. Id. at 23-24, 27, 41. Based upon his training 

and experience, Corporal Spencer opined that Appellant’s behaviors were 

indicative of someone who is under the influence of marijuana or “some type 

of narcotic” that inhibited his ability to safely operate his vehicle, and placed 

Appellant under arrest. Id. at 21-22, 45. 

It is well-established law that a driver who declines to submit to a blood 

or breath test to determine his alcohol level can still be charged and convicted 

under general impairment provision of DUI statute, Section 3802(a)(1), “if the 
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Commonwealth can prove that he or she drove after imbibing a sufficient 

amount of alcohol such that he or she was rendered incapable of safely 

driving.” Commonwealth v. Griffith, 32 A.3d 1231, 1239 (Pa. 2011). 

Likewise, Sections 3802(d)(2) and (d)(3) do not specify any particular manner 

by which the Commonwealth is required to prove that the defendant was 

under the influence of a drug, alcohol, or combination thereof. “[S]ubsections 

(d)(2) and (d)(3) of Section 3802 contain no language requiring that 

impairment be established through blood tests.” Commonwealth v. 

Duncan, 314 A.3d 556, 566 (Pa.Super. 2024) (citing Commonwealth v. 

DiPanfilo, 993 A.2d 1262, 1268 n.6 (Pa.Super. 2010), appeal denied, 40

A.3d 120 (Pa. 2012) (internal quotation marks omitted)). “Evidence of 

consumption of a drug, standing alone, is insufficient to prove impairment. 

Instead, impairment evidence should be drawn from the totality of the factual 

circumstances.” Commonwealth v. Spence, 290 A.3d 301, 309 (Pa.Super. 

2023) (citations omitted).

Based on all of the foregoing, we agree with the trial court, sitting as 

factfinder, that there was sufficient evidence presented at trial to support 

Appellant’s convictions for three counts of DUI and that his claim to the 

contrary is without merit. Accordingly, we affirm the October 31, 2023

judgment of sentence.
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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/7/2024