J-S67033-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HUNTER WILLIAM GRIMES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 980 MDA 2019

Appeal from the Judgment of Sentence Entered January 15, 2019

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

No(s): CP-21-CR-0001414-2018

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 31, 2020

Appellant Hunter William Grimes appeals the judgment of sentence 

entered by the Court of Common Pleas of Cumberland County after Appellant 

was convicted of two counts of Driving Under the Influence of a Controlled 

Substance (DUI).1 Appellant contends that the trial court erred in denying his 

suppression motion and challenges the sufficiency of the evidence supporting 

his convictions. After careful review, we affirm.

On November 24, 2017, at approximately 1:00 p.m., Trooper Zeina 

Black was on patrol in West Pennsboro Township, Cumberland County when,

using radar, she clocked Appellant’s vehicle traveling 55 miles per hour (mph) 

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* Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(d)(1)(i) (DUI Controlled Substance – Schedule I –

second offense); § 3802(d)(1)(iii) (DUI Controlled Substance – Metabolite –

second offense). Appellant was acquitted of the DUI charge at 75 Pa.C.S.A. 

§ 3802(d)(2) (DUI Controlled Substance – Impaired Ability – second offense).
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in a posted 35-mph zone. Trooper Black initiated a traffic stop of Appellant’s 

vehicle for exceeding the speed limit. Notes of Testimony (“N.T.”), 

Suppression Hearing, 6/5/19, at 5-7. 

Upon initiating contact with Appellant, Trooper Black noticed Appellant 

was “visibly” and “uncontrollably” shaking. Id. at 7, 11. While Trooper Black 

admitted that motorists pulled over for a traffic stop at times exhibit shaking 

due to nervousness, Trooper Black indicated that Appellant’s high degree of 

shaking was unusual. Id. at 14. When Trooper Black asked Appellant why 

he was shaking, Appellant did not offer any reason. Id. at 7. 

Trooper Black also noticed that Appellant’s pupils were “pinpoint

constricted.” Id. When asked why his pupils were constricted, Appellant 

indicated that he just woke up. Id. Trooper Black did not detect any odor of 

alcohol or marijuana in the vehicle. Id. at 7, 15. 

At that point, Trooper Black suspected Appellant was under the influence 

of a controlled substance and deemed it necessary to detain him for further 

investigation. However, as Trooper Black felt the assessment of Appellant’s 

intoxication was “beyond [her] training,” she did not perform field sobriety 

testing, but contacted her barracks to seek assistance from an officer certified 

in Advanced Roadside Impaired Driving Enforcement (ARIDE). Id. at 8.

Trooper David Highhouse, an ARIDE-certified officer, responded to 

assist Trooper Black in evaluating Appellant’s suspected intoxication. Trooper 

Highhouse first administered Standard Field Sobriety Testing, in which

Appellant exhibited several indicators of intoxication on both the “walk and 
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turn” and “one leg stand” tests. Id. at 19. While Trooper Highhouse was 

explaining the “walk and turn” test, Appellant was unable to remain still and 

stepped off the line twice. Id. at 20. Once instructed, Appellant “missed the 

heel to toe sequence on all steps.” Id. He also “made an improper turn and 

on the return nine steps, he stepped off line by going in a diagonal manner 

instead of down the straight line.” Id. During the “one leg stand test,” 

Appellant swayed and put his foot down before the test was complete. Id.

Trooper Highhouse also administered two ARIDE tests. First, Trooper 

Highhouse conducted the Lack of Convergence test after which he found that 

Appellant’s eyes converged normally. Id. at 23. Second, Trooper Highhouse 

administered the modified Romberg balance test, in which an individual is 

asked to tilt his head back, balance, and estimate the passage of thirty 

seconds in his head. Id. at 23. When Appellant submitted to this test, 

Appellant exhibited eye and body tremors and swayed back and forth. Id. at 

24. In estimating the thirty-second interval, Appellant waited thirty-eight 

seconds, eight seconds longer than necessary. Id. 

From these tests, Trooper Highhouse admitted he could not conclusively 

find that Appellant was under the influence of marijuana, but was able to 

determine Appellant exhibited several indicators of impairment. Id. at 24. 

Based on this assessment, Trooper Black transported Appellant to the Carlisle 

barracks for an evaluation by a Drug Recognition Expert. Id. at 16. Trooper 

Black indicated that, at that point, she had not arrested Appellant, but had

simply detained him for further investigation. Id. at 9, 16.
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At the Carlisle barracks, Appellant was evaluated by Trooper Ron Carey, 

an officer with certification as a Drug Recognition Expert (DRE) and experience 

teaching classes on field sobriety testing and ARIDE testing. N.T. at 35-36. 

Trooper Carey provided Appellant with Miranda warnings before the 

evaluation, noting that Appellant had been taken into custody based on 

suspicion of DUI. Id. at 38-39. Trooper Carey explained that as a DRE expert, 

he is trained to perform additional tests to examine specific physical indicators 

such as blood pressure, pulse, pupil response, etc. Id. at 39. 

Trooper Carey noted numerous indicators of Appellant’s intoxication,

including his slow coordination, slow and lethargic responses, rebound dilation 

of his pupils, elevated blood pressure and pulse, body and eye tremors, and 

his inability to estimate time in the Romberg balance test. Trooper Carey also 

observed a “green, pasty film” on Appellant’s tongue, which is indicative of 

the ingestion of marijuana. Id. at 41. Based on his observations and test 

results, Trooper Carey determined that Appellant was “incapable of safely 

operating a motor vehicle under the influence of cannabis.” Id. at 42. 2

Thereafter, Appellant was transported to a local hospital, where he 

consented to a blood draw, which confirmed the existence of cannabis in 

Appellant’s blood, measuring Delta 9 THC (the active ingredient in marijuana) 

at 7.9 nanograms per milliliter and Delta 9 carboxy THC 9 (the metabolite of 

THC) at 55 nanograms per milliliter. N.T. Trial, 12/4/18, at 25, 29. 

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2 The parties use the terms “marijuana” and “cannabis” interchangeably.
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After Appellant was charged with the aforementioned DUI counts and 

two summary offenses, he filed a suppression motion. After a hearing, the 

trial court subsequently denied Appellant’s suppression motion. In doing so, 

the trial court found that Trooper Black’s detention was supported by 

reasonable suspicion that Appellant was under the influence of a controlled 

substance. The trial court also suggested that Trooper Black did not escalate 

the investigative detention into a custodial arrest when she transported 

Appellant to her barracks for further evaluation from a drug recognition 

expert. Trial Court Opinion, 11/28/18, at 3.

At a subsequent bench trial, on December 4, 2018, the trial court 

convicted Appellant of two counts of DUI at 75 Pa.C.S.A. § 3802(d)(1)(i) (DUI 

Controlled Substance – Schedule I – second offense); § 3802(d)(1)(iii) (DUI 

Controlled Substance – Metabolite – second offense). The trial court acquitted 

Appellant of the DUI charge under 75 Pa.C.S.A. § 3802(d)(2) (DUI Controlled 

Substance – Impaired Ability – second offense). 

On January 15, 2019, after finding Appellant’s charges merged for 

sentencing, the trial court sentenced Appellant to ninety days to five years’ 

imprisonment. Appellant filed a timely appeal and complied with the trial 

court’s direction to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b).

Appellant raised the following issues for review on appeal in his 1925(b) 

statement:
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1. The Court erred in denying Appellant’s motion to suppress 

by determining that there was a necessary level of suspicion 

to detain [Appellant] beyond the initial traffic stop for 

speeding when Trooper Black viewed only shaking and 

constricted pupils on a bright sunny day, when the 

Commonwealth failed to demonstrate that the Trooper 

possessed the requisite training and experience to 

determine non-alcohol impairment, when SFST’s were not 

initiated prior to an extension of the stop’s duration by 

Trooper Black to call an ARIDE officer, when [Appellant]was 

observed to be driving in a smooth manner without obvious 

weaving, and when [Appellant] did not smell of illegal 

substances nor alcohol.

2. The Court erred in finding [Appellant] guilty of Counts 1 and 

2 (DUI Controlled Substance –Metabolite) on a per se basis 

when, under Pennsylvania Commonwealth law, marijuana 

can be a substance prescribed to an individual and the Court 

did not find evidence of Appellant’s impairment as evidenced 

by a non guilty verdict on Count 3 (DUI Controlled 

Substance – Impairment).

3. Insufficient evidence was presented by the Commonwealth 

at trial to find [Appellant] guilty of Counts 1 and 2.

1925(b) Statement, at 1-2.

Appellant first claimed that the trial court erred in denying his 

suppression motion as Trooper Black did not have the requisite suspicion to 

detain him beyond the initial traffic stop. Our standard of review is as follows:

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the

suppression court's factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court's factual findings are 

supported by the record, we are bound by these findings and may 

reverse only if the court's legal conclusions are erroneous. Where, 

as here, the appeal of the determination of the suppression court 
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turns on allegations of legal error, the suppression court's legal 

conclusions are not binding on an appellate court, whose duty it 

is to determine if the suppression court properly applied the law 

to the facts. Thus, the conclusions of law of the courts below are 

subject to our plenary review.

Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa.Super. 2019) (citations 

and quotation marks omitted). In addition, “our scope of review from a 

suppression ruling is limited to the evidentiary record that was created at the 

suppression hearing.” Commonwealth v. Rapak, 138 A.3d 666, 670 

(Pa.Super. 2016) (citing In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 (2013)).

In analyzing Appellant’s suppression challenge, we are guided by the 

following principles:

[the] Fourth Amendment of the Federal Constitution and Article I, 

Section 8 of the Pennsylvania Constitution protect individuals from 

unreasonable searches and seizures. To secure the right of

citizens to be free from such unreasonable intrusions, courts in 

Pennsylvania require law enforcement officers to demonstrate 

ascending levels of suspicion to justify their interactions with 

citizens as those interactions become more intrusive. We have 

long recognized that there are three levels of intrusion involved in 

interactions between members of the public and the police. The 

first is a mere encounter, which requires no level of suspicion at 

all. The second level is an investigative detention, which must be 

supported by reasonable suspicion. Finally, the third level is an 

arrest or custodial detention, which must be supported by 

probable cause. 

Commonwealth v. Soto, 202 A.3d 80, 90 (Pa.Super. 2018) (quoting 

Commonwealth v. Walls, 53 A.3d 889, 892–93 (Pa.Super. 2012)).

Appellant concedes that the initial traffic stop of his vehicle was lawful 

as Trooper Black had observed Appellant’s vehicle exceeding the speed limit

by 20 mph. The parties and trial court agree that Trooper Black extended the 
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initial traffic stop into a separate investigative detention when she detained 

Appellant so that he could evaluated by Trooper Highhouse, who was certified 

in advanced impaired driving assessment.

Appellant specifically challenges whether Trooper Black had reasonable 

suspicion to detain Appellant beyond the initial stop to assess whether he was 

under the influence of a controlled substance. It is well-established that:

[a] police officer may detain an individual in order to conduct 

an investigation if that officer reasonably suspects that the 

individual is engaging in criminal conduct. Commonwealth v.

Cook, 558 Pa. 50, 735 A.2d 673, 676 (Pa. 1999). ‘This standard, 

less stringent than probable cause, is commonly known as 

reasonable suspicion.’ Id. In order to determine whether the 

police officer had reasonable suspicion, the totality of the 

circumstances must be considered. In re D.M., 566 Pa. 445, 781 

A.2d 1161, 1163 (2001). In making this determination, we must 

give ‘due weight ... to the specific reasonable inferences [the 

police officer] is entitled to draw from the facts in light of his 

experience.’ Cook, 735 A.2d at 676, quoting Terry v. Ohio, 392 

U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Also, the 

totality of the circumstances test does not limit our inquiry to an 

examination of only those facts that clearly indicate criminal 

conduct. Rather, ‘[e]ven a combination of innocent facts, when 

taken together, may warrant further investigation by the police 

officer.’ Cook, 735 A.2d at 676.

In Interest of A.A., ___Pa.___, 195 A.3d 896, 904 (Pa. 2018) (quoting 

Commonwealth v. Rogers, 578 Pa. 127, 849 A.2d 1185, 1189 (2004)).

In this case, after Appellant was initial stopped for traveling 20 mph 

over the speed limit, Trooper Black noticed that Appellant was shaking 

“uncontrollably” and exhibited constricted pupils, which Trooper Black 

described as “pinpoint.” N.T. at 7, 11. Appellant could not explain these
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symptoms. Further, Trooper Black specifically noted that she did not smell 

any odor of alcohol or marijuana in the vehicle. 

Based on these observations, Trooper Black surmised that Appellant was 

under the influence of a controlled substance and felt assessing Appellant’s 

intoxication level was beyond her training level. As such, Trooper Black

detained Appellant to wait for the assistance of Trooper Highhouse, who was 

certified to perform advanced roadside impair driving evaluations.

Viewing the totality of the circumstances in this case, we conclude that 

the trial court did not err in finding Trooper Black had reasonable suspicion 

that Appellant had driven under the influence of a controlled substance other 

than alcohol, which justified her decision to extend the detention of Appellant 

for further investigation.

We note that Appellant devotes the majority of his brief to argue that 

he was subjected to an illegal arrest unsupported by probable cause when 

Trooper Black transported him to the state police barracks for further testing

by a Drug Recognition Expert. 

However, Appellant did not raise this specific argument in his 1925(b) 

statement. This Court has emphasized that “issues not raised in a Rule 

1925(b) statement will be deemed waived for review. An appellant's concise 

statement must properly specify the error to be addressed on appeal. In other 

words, the Rule 1925(b) statement must be “specific enough for the trial court 

to identify and address the issue [an appellant] wishe[s] to raise on appeal.” 

Commonwealth v. Sexton, ___A.3d___, 2019 PA Super 325 (Pa.Super. Oct. 
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28, 2019) (quoting Commonwealth v. Reeves, 907 A.2d 1, 2 (Pa.Super. 

2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007)).

Appellant’s 1925(b) statement limits his suppression challenge to claim 

that Trooper Black did not have the requisite suspicion to extend the initial 

traffic stop to seek ARIDE testing by Trooper Highhouse to determine if 

Appellant was driving under the influence of a controlled substance. As 

Appellant did not specifically raise any argument concerning the validity of his 

arrest in his 1925(b) statement, Appellant has waived this issue on appeal.

Appellant also challenges the sufficiency of the evidence supporting his 

DUI convictions. Our standard of review is as follows:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying the above test, we may not weigh the evidence and 

substitute our judgment for [that of] the fact-finder. In 

addition, we note that the facts and circumstances

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a defendant's 

guilt may be resolved by the fact-finder unless the evidence 

is so weak and inconclusive that as a matter of law no 

probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden 

of proving every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. 

Moreover, in applying the above test, the entire record must 

be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence 

produced, is free to believe all, part or none of the evidence.

Commonwealth v. Leaner, 202 A.3d 749, 768, (Pa.Super. 

2019) (citation omitted). To reiterate, the jury, as the trier of 
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fact—while passing on the credibility of the witnesses and the 

weight of the evidence—is free to believe all, part, or none of the 

evidence. Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 

2014) (citation omitted). In conducting review, the appellate court 

may not weigh the evidence and substitute its judgment for the 

fact-finder. Id. at 39-40.

Commonwealth v. Baumgartner, 206 A.3d 11, 14–15 (Pa.Super. 2019).

Appellant was convicted of two counts of DUI under Sections 

3802(d)(1)(i) and (iii) of the Vehicle Code, which provide:

(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:

(1) There is in the individual's blood any amount of a:

(i) Schedule I controlled substance, as defined in the 

act of April 14, 1972 (P.L. 233, No. 64), known as The 

Controlled Substance, Drug, Device and Cosmetic Act;

(ii) Schedule II or Schedule III controlled substance, 

as defined in The Controlled Substance, Drug, Device 

and Cosmetic Act, which has not been medically 

prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) 

or (ii).

75 Pa.C.S.A. § 3802(d). Marijuana has been designated as a Section I 

controlled substance. See 35 P.S. § 780-104(1)(iv).

This Court has provided that “a conviction under Section 3802(d)(1) 

does not require that a driver be impaired; rather, it prohibits the operation 

of a motor vehicle by any driver who has any amount of specifically 

enumerated controlled substances in his blood, regardless of impairment.” 

Commonwealth v. Etchison, 916 A.2d 1169, 1174 (Pa.Super. 2007), aff’d, 

596 Pa. 351, 943 A.2d 262 (2008) (emphasis in original).
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Appellant’s sufficiency challenge is meritless as the Commonwealth 

presented evidence that Appellant drove a vehicle with measured amounts of 

marijuana and its metabolite in his blood in violation of both Sections 

3802(d)(i) and (iii).

We are not persuaded to reach a different result by Appellant’s citation 

to the Medical Marijuana Act, which states that “[s]cientific evidence suggests 

that medical marijuana is one potential therapy that may mitigate suffering in 

some patients and also enhance quality of life.” 35 P.S. § 10231.102(1). 

Appellant has never claimed that he was prescribed marijuana. Moreover, 

even assuming arguendo that Appellant was prescribed marijuana, “[t]he fact 

that a person charged with violating this chapter is or has been legally entitled 

to use alcohol or controlled substances is not a defense to a charge of violating 

this chapter.” 75 Pa.C.S.A. § 3810. As such, the trial court did not err in 

denying Appellant’s sufficiency claims.

For the foregoing reasons, we affirm the judgment of sentence

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/31/2020