J-S52013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SUSAN A. PANICK 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1149 EDA 2019

Appeal from the Judgment of Sentence March 25, 2019

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0001361-2018

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

MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2019

Susan A. Panick appeals from judgment of sentence imposed March 25, 

2019, in the Lehigh County Court of Common Pleas. The trial court sentenced 

Panick to a term of six months’ intermediate punishment, with 30 days’ house 

arrest on electronic monitoring, following her non-jury conviction of driving 

under the influence (“DUI”) (controlled substances), careless driving, and 

moving stopped or parked vehicle.1 On appeal, she argues the evidence was 

insufficient to sustain her convictions of DUI and careless driving, and the trial 

court demonstrated bias against her such that her due process rights were 

violated. For the reasons below, we affirm.

____________________________________________

1 See 75 Pa.C.S. §§ 3802(d)(2), 3714(a), and 3333, respectively.
J-S52013-19

- 2 -

The facts underlying Panick’s conviction as presented during her nonjury trial were summarized by the trial court as follows:

[O]n December 25, 2017, at approximately 7:00 P.M., Constance 

Harding was in her family room located at 8033 Glenwood Court, 

New Tripoli, Lehigh County, Pennsylvania, when she observed a 

car backing up onto her back lawn. As it was dark and snowy 

outside, Ms. Harding was able to see the headlights from the 

vehicle streaming into her family room. Consequently, she and 

her husband went outside and found a vehicle stopped in their 

backyard. When they arrived on scene, another neighbor, 

Jason,

[2] and his wife were already there. The neighbors had been 

driving home when they observed the subject vehicle backed up 

onto the Harding[s’] bushes and possibly stuck on the Harding[s’]

lawn.

Mrs. Harding approached the vehicle and knocked on the window. 

The driver, later identified as the Defendant, Susan Panick, 

appeared to be confused, bewildered, and disoriented. [Panick] 

indicated that she was alright, but that she had Chinese food in 

the back seat for a party to which she was heading. Ms. Harding 

and the neighbor asked if [Panick] could place her vehicle in park. 

In response, [Panick] went in reverse and backed up further into 

a ditch. At this point, [Panick’s] vehicle was approximately 30 

[feet] into the Harding[s’] property, with the right tire in a ditch. 

Eventually [Panick] placed her vehicle in park. Ms. Harding helped 

[Panick] out of the vehicle, as she appeared to be unsteady. At 

that time, the neighbor was able to utilize tow ropes and remove 

the vehicle from the Harding[s’] lawn.

While the neighbor was towing the vehicle out of the ditch, Ms. 

Harding spoke with [Panick]. [Panick] related that she was on her 

way to a friend’s house on George Road and that she was traveling 

from about five (5) minutes away. However, [Panick] stated that 

she was coming from Hellertown, which is more than thirty (30) 

minutes away. During the conversation, Ms. Harding noted that 

[Panick’s] speech was slurred and she seemed to be confused. 

[Panick] requested that they do not involve the police. However, 

____________________________________________

2 Jason’s last name is not provided in the notes of testimony.
J-S52013-19

- 3 -

Ms. Harding was concerned that [Panick] was not capable of 

driving her vehicle safely, so she called the police.

At 7:36 P.M. that evening, Trooper Ahmad Norman of the 

Pennsylvania State Police, Fogelsville Barrack, a drug recognition 

expert, arrived on scene in the area of George and Carpet Roads, 

New Tripoli, in full uniform and in a marked police vehicle for a 

single car collision. He observed a vehicle in the opposite lane of 

travel with its lights on, straddling the right fog line. After 

speaking with Ms. Harding and the neighbors, Trooper Norman 

approached the subject vehicle to speak with [Panick]. Upon his 

approach, Trooper Norman requested that [Panick] activate the 

emergency brake on the vehicle. Despite it being her vehicle, 

[Panick] was not able to readily locate the emergency brake to 

employ. During the conversation between Trooper Norman and 

[Panick], Trooper Norman found [Panick] to appear to be frantic, 

excited, disoriented, and incoherent at times. Also, Trooper 

Norman detected the odor of alcohol about the vehicle and her 

person. [Panick’s] eyes were bloodshot and glassy, and [her] 

speech was slow. In addition, [Panick] constantly spoke over 

Trooper Norman, and her responses were not always responsive 

to the question posed.

Trooper Norman requested that [Panick] produce the appropriate 

documents, including the registration and insurance for the 

vehicle. [Panick] was fumbling through her paperwork and 

appeared to be confused. [Panick] explained that she was on her 

way to a party when she got lost. Her GPS had indicated that she 

had arrived at her destination, but there was no driveway. 

[Panick] expressed concern over missing the party and that the 

Chinese food was getting cold. Trooper Norman inquired if 

[Panick] had consumed alcohol earlier in the evening. [Panick] 

denied having drunk anything that day, but admitted that she took 

cough medicine as a sleep aid, anti-anxiety medicine, and pain 

medication earlier in the day. Trooper Norman noted there was 

an open bottle of prescription pills on the front seat. When 

questioned about same, [Panick] advised the Trooper that they 

were pain medication pills.

Trooper Norman requested that [Panick] exit the vehicle to 

perform field sobriety tests. Initially, [Panick] refused, but then 

she agreed and exited the vehicle. [Panick] did not perform well 

on the field sobriety test. She interrupted the Trooper numerous 

times, and would not follow the instructions. Consequently, the 

Trooper stopped the testing. Then, he asked if she would consent 
J-S52013-19

- 4 -

to a PBT [breath] test. [Panick] consented, but had difficulty 

following the directions and blowing as instructed. Without 

completing the test, [Panick] walked away abruptly and sat in her 

vehicle. Ultimately [Panick] was able to comply with the 

instructions and she was positive for alcohol.[3]

Based on his training, experience, and observations of the scene, 

Trooper Norman believed that [Panick] was incapable of safe 

driving. When [Panick] was advised that she was being taken into 

custody for suspicion of Driving Under the Influence, [Panick] 

stated that she is “not going to jail,” and clenched her hands 

around the steering wheel tightly in an effort to prevent her 

removal from the vehicle. [Panick] had to be forcibly removed 

from the vehicle. She was handcuffed, placed in the front seat of 

Trooper Norman’s patrol vehicle, and transported to the 

Pennsylvania State Police Fogelsville Barracks for additional 

evaluation.

Upon arrival at the Fogelsville Barracks, the 12 step drug 

recognition process was initiated. Trooper Norman administered 

the Walk and Turn test in which [Panick] performed poorly. She 

displayed numerous cues of impairment, including missing a healto-toe step, stepping off the line, and turning abruptly instead of 

taking small steps. Similarly, [Panick] displayed many cues 

during the One Leg Stand test, including swaying, using her arms 

for balance, and legs/body tremors. These tests confirmed 

Trooper Norman’s opinion that [Panick] was under the influence 

of a combination of controlled substances that rendered her 

incapable of safe driving.6 Therefore, [Panick] was transported to 

the Lehigh County Central Booking Center for a legal blood draw. 

[Panick] consented to the same, and the blood was drawn at 

10:55 P.M. The analysis of the blood drawn revealed the presence 

of the following drugs, within the therapeutic range: 

Amphetamine, Diphenhydramine, Clonazepam, 7-

Aminoclonazepan, Trazodone, and Quetiapine. 

__________

 6 Lisa Milinchuk, a certifying scientist at Health Network 

Laboratories and an expert in forensic chemistry, testified 

that the drugs present in [Panick’s] system all have side 

____________________________________________

3

It merits mention that the subsequent blood draw revealed only controlled 

substances, and no alcohol, in Panick’s blood. See N.T., 11/8/2018, at 57.
J-S52013-19

- 5 -

effects including drowsiness and dizziness. In addition, she 

opined that these drugs have an additive effect when used 

in combination with each other.

Trial Court Opinion, 5/20/2019, at 4-7 (record citations omitted).

Panick was charged with DUI – controlled substances, careless driving, 

moving stopped or parked vehicle, driving vehicle at safe speed, and operation 

of motor vehicle without required financial responsibility.4 The case proceeded 

to a non-jury trial on November 8, 2018. The trial court found Panick guilty 

of the above-referenced three offenses, and not guilty of the other two 

summary violations. On December 30, 2018, the trial court granted trial

counsel’s petition to withdraw because Panick had retained new counsel for 

sentencing and appeal. Thereafter, on March 25, 2019, the court sentenced 

Panick to a term of six months’ intermediate punishment, with thirty days’ 

house arrest and electronic monitoring, for her DUI conviction. The other 

offenses resulted only in a fine. This timely appeal followed.5

____________________________________________

4 See 75 Pa.C.S. §§ 3802(d)(3), 3714(a), 3333, 3361, and 1786(f), 

respectively.

5 On April 17, 2019, the trial court ordered Panick to filed a concise statement 

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Defense 

counsel did not comply with that order. However, on May 29, 2019, counsel 

moved to file a concise statement nunc pro tunc, asserting he did not receive 

the court’s April 17th notice. The court granted the motion on May 31, 2019, 

and directed counsel to file a concise statement within 10 days. Counsel 

complied with the directive and filed a concise statement on June 10, 2019. 
J-S52013-19

- 6 -

In her first issue on appeal, Panick challenges the sufficiency of the 

evidence supporting her convictions of DUI and careless driving. Our review 

of a sufficiency claim is well-established:

We [view] all the evidence admitted at trial in the light most 

favorable to the verdict winner, to determine whether there is 

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

of the crime beyond a reasonable doubt. We may not weigh the 

evidence and substitute our judgment for the fact-finder ... [ ] 

[who] 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. Spotti, 94 A.3d 367, 374 (Pa. Super. 2014) (en banc) 

(internal citations and punctuation omitted), appeal dismissed as 

improvidently granted, 132 A.3d 151 (Pa. 2016).

Panick was convicted of DUI under Subsection 3802(d)(2), which 

provides, in pertinent part:

(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: ...

(2) The individual is 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.

75 Pa.C.S. § 3802(d)(2). Significantly, a prosecution under this subsection 

does not require expert testimony to determine the amount of drugs in the

defendant’s blood. See Commonwealth v. Griffith, 32 A.3d 1231, 1239 

(Pa. 2011). Rather, similar to a general impairment conviction under 

Subsection 3802(a)(1), the focus is on the inability of the defendant to safely

drive, operate, or be in actual physical control of a vehicle after taking 
J-S52013-19

- 7 -

controlled substances (prescription or not), without consideration of the 

amount of substances detectable in a blood test. See id. Panick was also 

convicted of careless driving, which requires proof she drove “a vehicle in 

careless disregard for the safety of persons or property[.]” 75 Pa.C.S. § 

3714(a).

Here, Panick argues the Commonwealth failed to prove she was unable 

to drive safely, and/or drove in careless disregard for the safety of persons or 

property. See Panick’s Brief at 13-14. She insists the Commonwealth’s case 

rested “largely on a subjective impression of a collection of traits attributable 

to [her] health problems and overall demeanor.” Id. Panick explains:

The fact that a person has bloodshot eyes does not necessarily 

establish intoxication; it also establishes a head cold, as Ms. 

Panick testified. The fact that a person cannot perform the 

physically demanding sobriety tests does not necessarily establish 

intoxication; it also establishes that Ms. Panick had a long, painful 

history of physical damage to her leg, hip, and back which 

prevented her from successfully completing those test[s]. 

Likewise, the fact that a person exhibits a slow and slurred speech 

pattern does not necessarily establish intoxication but could also

simply be a physical trait. Evidence that Ms. Panick was difficult 

in that she did not follow instructions and talked over the trooper 

does not establish intoxication; as the Court observed, it only 

established a quirk of Ms. Panick’s personality.

Id. (record citation omitted). Indeed, Panick asserts the only evidence of her 

purported inability to drive safely was the fact that she “backed off a narrow, 

icy, unfamiliar road, on a dark night in an attempt to turn her vehicle around.” 

Id. at 15. Furthermore, she insists that absent testimony to establish that 

her demeanor was “directly attributable to her prescription medications, there 
J-S52013-19

- 8 -

is insufficient evidence to establish that she violated either Section 3802(d)(2) 

or Section 3714.” Id. 

Our review of the record reveals sufficient evidence to support the trial 

court’s verdict. With respect to the DUI conviction, there is no dispute Panick 

was under the influence of prescription drugs. Trooper Norman, a Drug 

Recognition Expert, testified that Panick advised him of the prescription 

medications she was taking to treat anxiety, depression, digestion issues, 

pain, and sleep issues, as well as over-the-counter cough syrup. See N.T., 

11/8/2018, at 44. The trooper also observed a bottle of morphine pills on the 

passenger seat of her car. See id. Although Panick testified the only 

prescription drug she took on the day of the incident was Dexadrine to treat

her attention deficit disorder,6 Trooper Norman testified Panick told him she 

took Dexadrine, Tramadol, Neurontin, and cough syrup between 5:00 p.m.

and 6:00 p.m. that evening, only an hour or two before the incident. See id.

at 58. When asked if any of the medications would impair a person’s ability 

to drive, Trooper Norman testified that everyone’s tolerance level is different, 

but in combination the drugs would “definitely [have] ... an additive effect.” 

Id. at 45. The Commownealth’s forensic chemistry expert, Lisa Milinchuk, 

testified Panick’s blood test revealed therapeutic levels of amphetamine, 

Diphenhydramine, Clonazepam, 7-Amino Clonazepam, Trazodone and 

____________________________________________

6 See N.T., 11/8/2018, at 87.
J-S52013-19

- 9 -

Queitiapine in her system.7 See N.T., 11/8/2018, at 75. Therefore, the 

Commonwealth presented sufficient evidence that Panick was under the 

influence of prescription narcotics. 

However, the Commonwealth was still required to prove she was under 

the influence of controlled substances to such a degree that it impaired her 

ability “to safely drive, operate or be in actual physical control of the 

movement of a vehicle.” 75 Pa.C.S. § 3802(d). The testimony of both Harding 

and Trooper Norman provides ample evidence to support this finding. First, 

Harding described Panick as “a little confused” and “kind of shaking” when she 

approached Panick’s vehicle in her yard. N.T., 11/8/2018, at 11. Moreover, 

when Harding and her neighbor asked Panick to put her car in park so they 

could tow it out of the ditch, Panick drove in reverse, further into Harding’s 

backyard. See id. Harding also testified that Panick did not seem to know 

how long she had been driving, stating she came from five minutes away, but

the town where she lived was forty minutes away. See id. at 13. Lastly, 

Harding stated Panick implored them not to call the cops. See id. at 16.

Trooper Norman, a trained Drug Recognition Expert, described Panick 

as frantic, “incoherent at times,” and “very confused, disoriented.” Id. at 35, 

37. He also noted her speech was slurred and she had bloodshot eyes. See 

____________________________________________

7 Milinchuk explained: (a) amphetamine would typically be found in Adderall; 

(b) Diphenhydramine is typically found in Benadryl; (c) Clonazepam and 7-

Amino Clonazepam are found in Valium or Xanax; and (d) Trazodone and 

Queitiapine are anti-depressants. See id. at 76.
J-S52013-19

- 10 -

id. at 36. Trooper Norman testified that based on his training and experience, 

he believed Panick was “possibly ... under the influence of some sort of drug, 

alcohol or maybe a medical related incident.” Id. at 37. She could not locate 

the emergency brake in her car when he asked her to apply it, and she 

fumbled through her paperwork when he requested to see her documentation. 

See id. at 36. At that point, Panick “mentioned that she didn’t want to get a 

DUI.” Id. Although the trooper detected an odor of alcohol on her breath, 

Panick insisted she did not have any alcoholic beverages that evening. See 

id. at 37. She did, however, provide him with a list of her prescription 

medications, and told him she took several of them between 5:00 and 6:00 

p.m. See id. at 43-44, 58. Trooper Norman testified Panick refused to follow 

directions when he attempted to conduct the field sobriety tests on the scene, 

and displayed indications of impairment when she performed the tests at the 

barracks. See id. at 39, 46. Panick did not tell the trooper she had any 

medical issues that would compromise her ability to perform the tests. See 

id. at 46, 60. Trooper Norman concluded that, in his opinion, Panick was 

“incapable of operating the vehicle and she was, in fact, impaired by a drug 

or combination thereof rendering that.” Id. at 67. 

Although Panick provided alternative explanations for her behavior, the 

trial court, as fact-finder, clearly did not credit her testimony. See Spotti, 

supra. Moreover, she fails to acknowledge that the court also viewed the 

video recording from Trooper Norman’s patrol car, and was, therefore, able to 

compare, first hand, Panick’s behavior at the scene with the way she 
J-S52013-19

- 11 -

presented herself in court. See N.T., 11/8/2018, at 50-52. We conclude the 

testimony of both Trooper Norman and Ms. Harding supports the trial court’s 

determination that Panick was under the influence of controlled substances to 

such a degree that she was incapable of driving safely or being in actual 

physical control of her vehicle. 

We note Panick provides very little argument concerning her careless 

driving conviction. See Panick’s Brief at 13-14. “The mens rea requirement 

applicable to § 3714, careless disregard, implies less than willful or wanton 

conduct but more than ordinary negligence or the mere absence of care under 

the circumstances.” Commonwealth v. Ford, 141 A.3d 547, 556 (Pa. Super. 

2016), appeal denied, 164 A.3d 483 (Pa. 2016). In the present case, Panick’s 

actions in backing over bushes8 and into a ditch, 30 feet into Harding’s yard, 

supports the court’s determination that she drove in careless disregard for 

property. See 18 Pa.C.S. 3714(a). Accordingly, Panick’s sufficiency challenge 

fails.

Next, Panick argues the trial court demonstrated bias against her such 

that her due process rights were violated, and she was denied the possibility 

of a fair trial. See Panick’s Brief at 16. Panick contends the trial court did not 

keep an open mind about her innocence as demonsrated by the court’s 

“repeated misstatements [of] the law; reliance on the improper, uninformed 

____________________________________________

8 Harding testified Panick “crushed” the bushes in her yard that line the ditch 

and sit about five feet off the road. N.T., 11/8/2018, at 26-27.
J-S52013-19

- 12 -

quasi-expert testimony of [an] unqualified layperson to establish a necessary 

element of several offenses; and a refusal to accept innocent explanations for 

allegedly criminal acts.” Panick’s Brief at 20. Specifically, Panick refers to (1) 

the court’s comment that she is not supposed to drive if she has any controlled 

substances in her system;9 (2) Trooper Norman’s “completely uninformed, 

uneducated lay opinion as to the functions and side effects of Ms. Panick’s 

medications;”10 and (3) the court’s dismissal “out of hand” of the innocent 

explanations for Panick’s behavior based on her “medical issues and personal 

quirks.”11

Preliminarily, however, we must determine if this issue is waived. 

Although Panick acknowledges trial counsel did not object to the court’s 

comments, she insists “Pennsylvania’s appellate waiver doctrine is not strictly 

applied to claims of judicial misconduct.” Panick’s Brief at 17. Citing to 

Commonwealth v. Hammer, 494 A.2d 1054 (Pa. 1985), Panick argues 

counsel is not required to make a timely objection when doing so would be 

futile in light of the judge’s comments. See Panick’s Brief at 17. We disagree.

First, we note Hammer was abrogated by Commonwealth v. Grant, 

813 A.2d 726 (Pa. 2002). Panick maintains it was overruled on other grounds. 

However, we find procedurally, Hammer was on par with Grant. The 

____________________________________________

9 See N.T., 11/8/2018, at 98.

10 Panick’s Brief at 23, citing N.T., 11/8/2018, at 44-45.

11 Id. at 27, citing N.T., 11/8/2018, at 114.
J-S52013-19

- 13 -

Hammer Court overlooked trial counsel’s failure to object to court bias and 

directly addressed the defendant’s claims on direct appeal. In Grant, the 

Supreme Court specifically overruled Hammer, and held that, “as a general 

rule, a petitioner should wait to raise claims of ineffective assistance of trial 

counsel until collateral review.”12 Grant, supra, 813 A.2d at 738. Therefore, 

Panick’s judicial bias claim is waived on direct appeal. See Commonwealth 

v. Colon, 31 A.3d 309 (Pa. Super. 2011), appeal denied, 42 A.3d 1058 (Pa. 

2012) (holding Hammer was overruled by Grant, and, therefore, defendant’s 

challenge to trial court’s purportedly improper and biased remarks to and 

questioning of defense witnesses was waived absent an objection at trial).

Nevertheless, we note even if we were to address Panick’s issue, we 

would conclude she is entitled to no relief. Our review of the record from the 

non-jury trial reveals the trial court understood the law applicable to Panick’s 

case and displayed no bias or ill will towards her. 

Panick first cites to the court’s discussion with her about the amount of 

prescribed medication in her blood test. See Panick’s Brief at 21-22, quoting

N.T., 11/8/2018, at 98-88. She insists the court “very clearly misunderstood 

____________________________________________

12 We note the facts of this case do not satisfy any of the exceptions to the 

general deferral rule set forth in Grant. See Commonwealth v. Holmes, 

79 A.3d 562, 563-564 (Pa. 2013) (holding trial courts may address 

ineffectiveness claim on post-verdict motions and direct appeal when (1) the 

counsel’s ineffectiveness is both apparent from the record and meritorious; or 

(2) there is good cause shown and defendant voluntarily waives his right to 

seek subsequent PCRA review); Commonwealth v. Delgros, 183 A.3d 352, 

361 (Pa. 2018) (adopting third exception to Grant deferral rule when “the 

defendant is statutorily precluded from obtaining subsequent PCRA review”).
J-S52013-19

- 14 -

and misstated the law” when it asserted “the mere presence of medication in 

[her] system was sufficient for a conviction for the DUI offense[.]” Panick’s 

Brief at 22. However, Panick failed to cite to the next statement by the trial 

court, in which the court summarized:

So if you’re going to take something to go to sleep at night and 

it’s still in your system, in combination with five other things, 

these people witnessed you and said you’re not capable of 

driving.

N.T., 11/8/2018, at 99-100 (emphasis supplied). It is evident the court 

understood that to find Panick guilty of DUI under Subsection 3802(d)(2), it 

had to find there was some amount of controlled substances in her system, 

and those controlled substances affected her ability to drive safely. See id.

at 106 (defense counsel states during closing “[i]t’s not just having medication 

in your system but that the medication impairing your ability to safely drive a 

vehicle[,]” to which the court responds, “Yes”).

Second, Panick contends the court improperly relied on “quasi-medical 

opinions offered by two unqualified witnesses.” Panick’s Brief at 23. This 

claim, however, does not demonstrate judicial bias, but rather, implicates the 

weight and sufficiency of the evidence supporting the verdict. In any event, 

Trooper Norman testified as a Drug Recognition Expert. See N.T., 11/8/2018, 

at 31. Therefore, he was qualified to describe the “functions and side effects 

of [] Panick’s medications[.]” Panick’s Brief at 23. 

Third, Panick criticizes the trial court for exhibiting “a closed mind to 

realistic non-criminal explanations for Ms. Panick’s physical disabilities, 
J-S52013-19

- 15 -

anxious state, and manner of speech.” Panick’s Brief at 28. However, our

review of the transcript reveals nothing more than the court’s annoyance with 

Panick’s sometimes disrespectful behavior. Panick’s claim that the court failed 

to credit her defense implicates the weight of the evidence, rather than 

demonstrates judicial bias. Therefore, even if we were to address Panick’s 

second issue, we would conclude she is entitled to no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/19