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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES M. MERVIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 989 EDA 2018

Appeal from the Judgment of Sentence March 1, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0010769-2017

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.: FILED MAY 07, 2019

Charles M. Mervin appeals from the judgment of sentence imposed on 

March 1, 2018, following a bench trial, in the Court of Common Pleas of 

Philadelphia County. Mervin was convicted of one count of DUI: Controlled 

Substance (marijuana) – Impaired Ability.1 He was sentenced to a term of 72 

to 144 hours’ incarceration, with immediate parole after 72 hours. In this 

timely appeal, Mervin argues there was insufficient evidence to support his 

conviction. After a thorough review of the submissions by the parties, relevant 

law, the certified record, we affirm.

The standard of review for claims of insufficient evidence is wellsettled. With respect to such claims, we consider the evidence in 

the light most favorable to the Commonwealth as verdict winner.

Commonwealth v. Barnes, 871 A.2d 812, 819 A.2d Super. 

2005). In that light, we decide if the evidence and all reasonable 

inferences from that evidence are sufficient to establish the 

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1 75 Pa.C.S. § 3802(d)(2).
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elements of the offense beyond a reasonable doubt. Id. We keep 

in mind that it was for the trier of fact to determine the weight of 

the evidence and the credibility of witnesses. Id. The jury was 

free to believe all, part or none of the evidence. Id. This Court 

may not weigh the evidence or substitute its judgment or that of 

the factfinder. Id.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

We recite the facts underlying this matter as related in the trial 

court opinion.

On December 31, 2016, at approximately 12:03 am, 

Trooper Baines, Badge #13099, of the Pennsylvania State Police 

was on routine patrol in a marked Ford Taurus on Interstate 76 

Eastbound at the intersection of Interstate 676 Eastbound with his 

partner, Trooper Tray. Trooper Baines had been on the force 

approximately two months but Trooper Tray was a far more 

experienced officer, having been a trooper for over a decade as of 

December 31, 2016. At that date, time, and location, Trooper 

Baines observed Mr. Charles Mervin in a black Dodge Dart, 

registration number JYE8566, traveling eastbound on I-76 to I676 East.

Troopers Baines and Tray were alerted to [Mervin] when they 

observed

The vehicle driving aggressive. He was tailgating the vehicle 

in front of him...There was maybe not even a car’s length in 

front of his vehicle. He was on – almost directly behind the 

vehicle ahead of his...while he was driving within his lane, 

he was weaving kind of, not driving straight, but side-toside.

Additionally, using a police vehicle speedometer, Trooper Baines 

clocked [Mervin] traveling “at 70 miles per hour in a 50 miles per 

hour zone.”

After observing [Mervin’s] driving for at least one-half mile, 

Trooper Baines activated his “emergency lights and sirens.” “The 

vehicle came to stop on the left travel lane. [Trooper Tray] had 

to exit the vehicle and advise the operator to move to the right 

shoulder which he complied.” Trooper Baines described that 
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stretch of road as “So it’s about three lanes, and there is a right 

shoulder right where Broad Street exit is,” and [Mervin] pulled 

over to “the left lane, directly next to the wall separating the east 

and westbound lanes,” where he was blocking other traveling 

cars.

Once [Mervin] pulled over to the shoulder, Trooper Baines 

“approached the driver’s side. [He] advised the operator for the 

reason for the stop. And while during the interaction, [he] 

observed a strong odor of burnt marijuana emanating from the 

vehicle.” Trooper Baines was familiar with the odor of both burnt

and raw marijuana through training at the State Police Academy. 

Trooper Baines “was at the driver’s side door leaning down directly 

face-to-face with the operator” when he observed that [Mervin’s] 

“eyes were glassy and bloodshot, during our interactions he was 

laughing and giggling...” He also seemed to have difficulty 

obtaining his driver’s license...registration and insurance cards...He 

was fumbling through his wallet, unsure where to find them, and 

just not coherent in obtaining them.” [Mervin] stated that he “had 

smoked marijuana 30 minutes prior...to the traffic stop.”

Once [Mervin] located all of his documents, Trooper Baines 

asked [Mervin] to exit his vehicle and administered field sobriety 

tests, in accordance with his training. Trooper Baines 

administered the “horizontal gaze nystagmus test, walk and turn, 

and the one leg stand.” Prior to each test, Trooper Baines asked 

[Mervin] if he had any medical conditions which would impair his 

ability to successfully complete the test. During the walk and turn 

test, [Mervin] indicated six out of eight clues of intoxication. 

“During the walking phase, he stopped walking, he missed heelto-toe, he stepped off the line, and he also took an incorrect 

number of steps during his first nine steps. And also did an 

improper turn to take his nine back.” During the one leg stand, 

[Mervin] indicated four out of four clues of intoxication. “He 

hopped, he was swaying during the test, he raised his arms, and 

he put his foot down as well prior to the end of the 30-seconds. 

Based upon his observations of [Mervin] prior to and during the 

field sobriety tests administered, Trooper Baines formed the 

opinion that [Mervin] “was unfit to operate a motor vehicle due to 

the use of marijuana.” No blood evidence was admitted, and no 

Drug Recognitions Expert was enlisted to further observe and 

administer additional field tests on [Mervin].
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Trial Court Opinion, 5/22/2018, at 1-3 (citations to notes of testimony 

omitted).

Mervin now asserts the trial court convicted him based upon the “smell 

of marijuana made by a Trooper who is not a trained Drug Recognition 

Evaluator, no blood test results and an individual who was stopped for 

travelling approximately ten miles over the posted speed limit[.]” Mervin’s 

Brief at 7-8. To support this allegation, Mervin cites Commonwealth v. 

DiPanfilo, 993 A.2d 1262 (Pa. Super 2010), for the proposition that a 

conviction for marijuana-related DUI must be supported by expert testimony. 

All parties and the trial court agree that no such expert testimony was 

produced. Therefore, Mervin claims, his conviction was not supported by 

sufficient evidence. This argument is without merit.

Initially, we note the trial court cites far more evidence than that which 

Mervin recounts. In reviewing this claim, we are required to examine the 

evidence in the light most favorable to the Commonwealth, as verdict winner, 

not, as Mervin would have, in the light most favorable to him. Evidence 

showed Mervin was travelling approximately 20 miles over the posted speed 

limit, not ten.2 Mervin admitted to having smoked marijuana 30 minutes prior 

to the traffic stop. Trooper Baines was met with a strong odor of marijuana 

when he approached Mervin’s car. Mervin was weaving within his lane of 

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2 Trooper Baines testified Mervin was travelling 70 mph in a 50 mph zone.
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travel, unable to keep his vehicle in a straight path. At 70 miles per hour, 

Mervin was tailgating the car in front of him. When pulled over, Mervin 

stopped his car in a travel lane rather than pulling over to the shoulder of the 

road; he had to be told to move the car to the safer location. Trooper Baines 

observed Mervin had glassy and bloodshot eyes. Mervin had trouble finding 

his driver’s license, registration, and insurance card and was laughing and 

giggling through the efforts. Mervin failed all of the field sobriety tests he was 

asked to perform. This is significantly more evidence than Mervin would have 

us believe was presented.

Additionally, DiPanfilo does not require expert testimony in all 

circumstances involving DUI-marijuana. Rather, DiPanfilo states:

We acknowledge that [Commonwealth v.] Etchison, [916 A.2d 

1169 (Pa. Super. 2007)] recognized a need for expert testimony 

in the area of marijuana, a commonly-known drug like cocaine 

and alcohol. However, we do not read Etchison as requiring 

expert testimony in every marijuana case,FN or (as Appellant 

seems to suggest) every illegal-drug case.

FN. For example, if a police officer stopped a driver who 

was driving erratically, and the driver then rolled down his 

window and greeted the officer through a cloud of 

marijuana smoke, showing the typical signs of heavy 

marijuana use, it would be difficult to imagine it would be 

necessary to establish the link between the erratic driving 

and the driver’s marijuana use.

Commonwealth v. DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010).3

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3 We note Etchison is also distinguishable from the instant matter in that the 

only evidence of marijuana use there was a blood test demonstrating 53 
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Our review of the certified record leads to the inescapable conclusion 

that the instant factual situation virtually mirrors the example given in 

DiPanfilo for the circumstance where no expert testimony is required. We 

agree with the reasoning of DiPanfilo that there are some circumstances 

where lay observations, especially those observations by a trained police 

officer4, provide sufficient information to conclude the erratic driving was 

linked to the marijuana usage.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/7/19

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nanograms of metabolites of cannabinoids. As the concurring and dissenting 

opinion of Judge John T. Bender noted, the Commonwealth presented no 

evidence of recent use – including no odor of marijuana and no “damning 

admission” of recent use, Etchison, supra at 1175, both of which are present 

instantly.

4 While Trooper Baines was not a trained Drug Recognition Evaluator, he was 

generally trained to detect signs of intoxication and the inability to safely 

operate a motor vehicle, as well as the indicia of marijuana use.
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