J

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

COMMONWEALTH OF PENNSYLVANIA

v.

DANIEL TERRENCE WEST

Appellant : : : : : : : : : 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 c arrying 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 wit h Corporal Spencer ’ s background and experience. Corporal

_________________ __________ ______ ____ _______

* 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.J

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- Spe n cer 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 S p encer 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 detect ion enforcement . Corporal Spencer explained that these courses help one to better understand a person ’s ability f or 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 D UI 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.

Co rporal Spencer asked [Appellant] whether he had a concealed carry permit for the shotgun. [Appellant] provided Corporal Spence r 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. WhenJ

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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, blood shot 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 obtai ned 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 threeJ

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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 motion s. 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 sol o issue on appeal is that the Commonwealth presented

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

Section s 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

-

_________________ __________ ______ ____ _______

2 Appellant and the trial court have complied with Pa.R.A.P. 1925(b).J

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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 S ection 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 Section s 3802 (a)(1),
(d)(2), and (d)(3)

. As noted, the evidence presented by the CommonwealthJ

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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 1 5

- 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 place d
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 theJ

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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 , 202 3
judgment of sentence.J

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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 10/ 7/2024