J-S59029-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LINDA ALLEN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 152 EDA 2019

Appeal from the Judgment of Sentence Entered December 14, 2018

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

No(s): CP-23-CR-0002877-2018

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY LAZARUS, J.: FILED MARCH 31, 2020

Linda Allen appeals from the judgment of sentence, entered in the Court 

of Common Pleas of Delaware County, following her convictions for driving 

under the influence (DUI)—general impairment,1 possession of a controlled 

substance,2 habitual offenders,3 possession of marijuana,4 possession of drug 

paraphernalia,5 driving on a suspended license,6 and driving without a 

____________________________________________

1 75 Pa.C.S.A. § 3802(a)(1).

2 35 P.S. § 780-113(a)(16).

3 75 Pa.C.S.A. § 6503.1.

4 35 P.S. § 780-113(a)(31).

5 35 P.S. § 780-113(a)(32).

6 75 Pa.C.S.A. § 1543(b)(1).
J-S59029-19

- 2 -

license.7 On appeal, Allen challenges the sufficiency of the evidence for her 

DUI conviction only. Upon careful review, we vacate her conviction and 

reverse the judgment of sentence as to that count.

On the evening of February 8, 2018, Corporal Kevin Lappin of the Upper 

Providence Township Police Department was in a marked patrol vehicle 

monitoring traffic on Baltimore Pike in Upper Providence Township, Delaware 

County. N.T. Trial, 10/9/18, at 9-10. At approximately 9:04 p.m., a maroon 

truck drove past Corporal Lappin, who checked the status of its registration. 

Id. at 10. PennDOT records indicated that the truck was registered to Allen 

and that Allen’s driver’s license was suspended. Id. at 10-11. Corporal Lappin 

began following the truck and used the computer system in his police vehicle 

to obtain a photo of Allen from the Pennsylvania Justice Network (JNET)

system. Id. at 11. He determined that the driver looked like the photo of 

Allen on the system. Id. The JNET system also confirmed that Allen’s license 

had been suspended for DUI. Id. at 11-12. Based on this information, 

Corporal Lappin initiated a traffic stop of the truck and confirmed that Allen

was driving the truck. Id. at 12-13.

When Corporal Lappin spoke with Allen, she told him she was lost. Id. 

at 13. Allen appeared jittery, and she could not keep her head or arms still. 

Id. She had glassy and red eyes. Id. She spoke with a slow and slurred 

manner of speech. Id. at 43.

____________________________________________

7 75 Pa.C.S.A. § 1501(a).
J-S59029-19

- 3 -

At the time of this traffic stop, Corporal Lappin had twenty years of 

experience as a police officer and had previously made between 100 and 125 

DUI arrests. Id. at 14. Corporal Lappin had also attended an Advanced 

Roadside Impairment Driving Enforcement (ARIDE) class. Id. at 13. The 

ARIDE class included training on field sobriety tests and signs of impairment 

relating to prescription drugs. Id. at 14. Based upon his observation and 

training, Corporal Lappin believed Allen was an impaired driver. Id. at 14-15.

Allen told Corporal Lappin that she had taken Clonazepam and other 

medications. Id. at 15. When asked if there were any medications in her 

vehicle, she pulled a bag towards her, and various items fell out of the bag, 

including a dark green glassine pipe used for smoking marijuana and a glass 

vial containing a green vegetable-like substance that Corporal Lappin 

suspected was marijuana. Id. at 15. Allen then emptied her pockets, pulling 

out a second glassine pipe and another vial containing more suspected 

marijuana. Id. at 16. Allen confirmed that she possessed marijuana and she 

admitted that she smoked some marijuana about an hour earlier. Id. at 16.

Corporal Lappin administered several field sobriety tests to determine if 

Allen was impaired and unable to safely drive. Id. at 16, 38. Corporal Lappin 

administered the horizontal gaze nystagmus (HGN) test, the walk-and-turn 

test, and the one-legged-stand test. Id. at 16. The HGN test did not reveal 

signs of impairment. Id. at 17. Corporal Lappin testified that exhibiting two 

of the eight possible clues during the walk-and-turn test is sufficient to indicate 

impairment. Id. at 17, 41. Allen exhibited five clues during the walk-and-
J-S59029-19

- 4 -

turn test, including the inability to maintain her balance, not walking heel to 

toe, and not walking the proper number of steps. Id. at 17-18, 40. Allen also 

failed the one-legged-stand test. Id. at 41. Allen’s difficulty performing these 

field sobriety tests led Corporal Lappin to conclude that she was impaired. Id. 

at 12-14.

Corporal Lappin placed Allen under arrest and then read her the DL-26B

Form, which contained the chemical test warnings. Id. at 19, 24-25. After 

the warnings were read, Allen stated that she did not know if she would submit 

to the test. Id. at 25. Allen also said that she took Xanax earlier and lacked 

a prescription for it. Id. Corporal Lappin recorded her responses on the 

bottom of the form along with the time. Id.; Commonwealth’s Ex. 5. The 

DL-26B Form contains an affidavit for the arresting officer to complete and 

sign if the arrestee refuses to submit to chemical testing. Commonwealth’s 

Ex. 5. Corporal Lappin did not complete this affidavit. Id. There were no 

exhibits or further testimony indicating whether Allen agreed or refused to 

submit to chemical testing of either her breath or blood. Also, there was no 

testimony about whether the police obtained a search warrant to draw Allen’s 

blood for chemical testing.

At trial, the parties stipulated that the police recovered Alprazolam 

(Xanax), Clonazepam, and marijuana from Allen’s vehicle. N.T. Trial, 

10/9/18, at 5-8. During closing arguments, the assistant district attorney 

stated, “I will make no argument to Count One about the alcohol.” Id. at 49. 
J-S59029-19

- 5 -

The trial court found Allen guilty of the above crimes, and on December 

14, 2018, the trial court sentenced Allen to an aggregate sentence of sixty 

days to six months of incarceration, and a concurrent term of probation of six 

months. Specifically, the trial court sentenced Allen to a mandatory minimum 

term of seventy-two hours to six months’ incarceration, plus a fine of $1,000 

for the DUI—general impairment conviction because Allen refused to submit 

to chemical blood testing. N.T. Sentencing, 12/14/18, at 3-4, 13; see also 

75 Pa.C.S.A. § 3804(c)(1). The trial court also imposed a flat sentence of 

sixty days of incarceration for the driving under suspension—DUI related 

conviction, plus a $500 fine, to run concurrently with the sentence for the DUI 

conviction. N.T. Sentencing, 12/14/18, at 5. Allen was also sentenced to a 

total term of six months of probation on the other convictions, concurrent to 

her sentence of incarceration, plus a fine of $200. Id.

Allen timely appealed on January 11, 2019. On February 1, 2019, 

Allen’s counsel filed a statement pursuant to Pa.R.A.P. 1925(c)(4) indicating 

that he intended to file an Anders8 brief with this Court. In light of this 

statement, the trial court filed a Rule 1925(a) opinion on February 5, 2019, 

stating that no further explanation of Allen’s conviction and sentence was 

necessary.

____________________________________________

8 Anders v. California, 386 U.S. 738 (1967) (providing that if counsel wishes 

to withdraw because he finds appeal to be wholly frivolous, he must 

accompany request to withdraw with brief referring to anything in record that 

might arguably support appeal); see also Commonwealth v. Santiago, 978 

A.2d 349 (Pa. 2009) (requiring that Anders brief also explain counsel’s 

reasons for concluding that appeal is frivolous).
J-S59029-19

- 6 -

On March 12, 2019, Allen’s counsel filed with this Court an application 

to suspend briefing schedule and a request for remand to file a Rule 1925(b)

statement of errors complained of on appeal. Therein, counsel stated that 

after further review of the record, he discovered a meritorious issue and 

requested the case be remanded to the trial court so he could file a Rule 

1925(b) statement on Allen’s behalf. This Court granted counsel’s application 

on March 26, 2019, and remanded the certified record and application to the 

trial court for a period of sixty days. Allen and the trial court complied with 

Rule 1925 and the supplemented certified record was returned to this Court 

on April 25, 2019.

Allen presents a single issue for our review:

Whether the evidence was insufficient to sustain the conviction of 

driving under the influence under 75 Pa.C.S.[A.] § 3802(a)(1) 

where the Commonwealth presented no evidence that [Allen] 

imbibed alcohol prior to operating the vehicle and failed to prove 

beyond a reasonable doubt that she was unlawfully impaired by 

alcohol at the time in question? 

Brief of Appellant, at 5.

Allen claims that the evidence was insufficient to sustain her conviction 

for DUI—general impairment where there no was no evidence that alcohol 

impaired her ability to drive. Id. at 10, 12. She argues that the 

Commonwealth failed to prove all elements of DUI—general impairment 

beyond a reasonable doubt. Id. at 11-12. We agree.

It is well-settled that:
J-S59029-19

- 7 -

Whether sufficient evidence exists to support the verdict is a 

question of law; our standard of review is de novo and our scope 

of review is plenary. We review the evidence in the light most 

favorable to the verdict winner to determine whether there is 

sufficient evidence to allow the [fact-finder] to find every element 

of a crime beyond a reasonable doubt.

Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (citations 

and quotation marks omitted).

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 

[fact-finder,] while passing upon the credibility of the witnesses 

and the weight of the evidence produced, is free to believe all, 

part[,] or none of the evidence.

Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).

The statute under which Allen was convicted provides that: “An 

individual may not drive, operate or be 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) (emphasis added). Accordingly, “the Commonwealth must show:

(1) that the defendant was the operator of a motor vehicle and (2) that while 

operating the vehicle, the defendant was under the influence of alcohol to such 
J-S59029-19

- 8 -

a degree as to render [her] incapable of safe driving.” Commonwealth v. 

Smith, 831 A.2d 636, 638 (Pa. Super. 2003) (emphasis added).

At the outset, it is not disputed that Allen was operating a motor vehicle,

as she was the sole occupant of the vehicle when it was stopped. Brief of 

Appellant, at 12; see also N.T. Trial, 10/9/18, at 13. Thus, the first element 

of the offense of DUI—general impairment has been satisfied. See Smith, 

831 A.2d at 638.

We explained in Commonwealth v. Gause, 164 A.3d 532 (Pa. Super. 

2017) (en banc), that, in order to “establish the second element [of § 

3802(a)(1)], the Commonwealth must show that alcohol has substantially 

impaired the normal and physical faculties required to safely operate the 

vehicle.” Id. at 541, quoting Commonwealth v. Palmer, 751 A.2d 223, 228 

(Pa. Super. 2008) (emphasis added) (citations and quotation marks omitted). 

In Gause, we concluded that the defendant’s conviction under section

3802(a)(1) was not supported by sufficient evidence where the arresting 

officer testified Gause was “not alcohol impaired,” even though Gause 

admitted that he had drank a 12-ounce can of beer before driving, the officer 

smelled alcohol on Gause, and Gause “completed field sobriety tests with 

varying levels of success.” Id. at 535. Although the Commonwealth proved 

Gause operated a vehicle while under the influence of alcohol, we held that 

the record did not support a conclusion that he was intoxicated to such a 

degree as to render him incapable of driving safely. Id. at 542. 
J-S59029-19

- 9 -

In concluding that there was insufficient evidence to sustain Gause’s 

conviction, our court examined a number of cases involving section

3802(a)(1) convictions. Gause, supra at 541-42. In every case where the 

conviction was upheld, the Commonwealth presented evidence that the 

defendant actually consumed alcohol; furthermore, each conviction rested, at 

least, upon a combination of failed sobriety tests and either: (1) an officer 

smelling alcohol emanating from the defendant; or (2) the defendant’s 

admission that he/she drank alcohol before driving. Id. at 542, citing 

Commonwealth v. Segida, 985 A.2d 871, 880 (Pa. 2009) (sufficient 

evidence where defendant admitted that he drank before driving, officer 

smelled strong odor of alcohol on defendant, and defendant failed field 

sobriety tests); Commonwealth v. Teems, 74 A.3d 142, 146 (Pa. Super.

2013) (sufficient evidence where officer smelled strong odor of alcohol, 

defendant had red, glassy eyes and slurred speech, defendant failed to blow 

properly into portable alcohol breath test machine, and blood test at hospital 

revealed BAC of .143); Commonwealth v. Feathers, 660 A.2d 90 (Pa.

Super. 1995) (defendant’s glassy eyes, slurred speech, odor of alcohol, 

inability to stand, and failure of field sobriety tests deemed sufficient to 

support DUI conviction); Commonwealth v. Kowalek, 647 A.2d 948 (Pa.

Super. 1994) (defendant's bloodshot eyes, slurred speech, strong odor of 

alcohol, difficulty producing license and registration, and failure of field 

sobriety tests deemed sufficient to support conviction); see also 
J-S59029-19

- 10 -

Commonwealth v. Eichler, 133 A.3d 775 (Pa. Super. 2016) (sufficient 

evidence where defendant smelled of alcohol, admitted to drinking, had 

bloodshot eyes, and had BAC of .30).

The matter sub judice is readily distinguishable. Here, “there was no 

testimony that Corporal Lappin smelled alcohol in the vehicle or emanating 

from [Allen’s] person[,] nor did [Allen] admit to imbibing any alcohol prior to 

the stop.” Trial Court Opinion, 4/23/19, at 8. Furthermore, there was no 

evidence of Allen’s blood-alcohol content or the results of any other chemical 

test. The trial court concluded, however, that “it was clear that [Allen] was 

absolutely not capable of operating a motor vehicle due to impairment” from 

alcohol. Id. at 9. The trial court based its conclusion on Allen’s red and glassy 

eyes, slow and slurred speech, irregular behavior, and failing two field sobriety 

tests.9 Id. Under established case law, this is not enough. 

Instantly, the evidence, even viewed in the light most favorable to the 

Commonwealth as verdict winner, does not support a conviction of DUI—

general impairment under § 3802(a)(1). The statute requires proof of alcohol 

consumption. See 75 Pa.C.S.A. § 3802(a)(1); Gause, supra. The 

____________________________________________

9 We note that these signs of intoxication are plausibly attributable to the 

combination of drugs Allen admitted to taking before driving. In fact, in 

Gause, we recognized that “staggering, stumbling, glassy or bloodshot eyes, 

and slurred speech” are signs of intoxication attributable to ingesting 

controlled substances including marijuana. Gause, supra at 539. Here, Allen 

admitted to smoking marijuana and taking two additional drugs before driving, 

one being a sedative, and at least one of which she was not prescribed.
J-S59029-19

- 11 -

Commonwealth simply did not offer any proof of alcohol consumption here. 

Accordingly, the Commonwealth did not prove beyond a reasonable doubt that 

Allen, at the time of driving, was incapable of doing so safely due to the 

consumption of alcohol.

Conviction and judgment of sentence vacated as to DUI. All remaining 

convictions affirmed. Case remanded for resentencing consistent with this 

memorandum.10 Jurisdiction relinquished.

Judge McLaughlin joins this Memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/31/2020

____________________________________________

10 As we believe that vacating the DUI penalty in this matter disturbs the trial 

court’s overall sentencing scheme, we remand for resentencing. See 

Commonwealth v. Thur, 906 A.2d 552, 570 (Pa. Super. 2006).