Opinion
347 EDA 2021
03-08-2022
COMMONWEALTH OF PENNSYLVANIA v. JAMES ADAM CLEMENTS Appellant
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 4, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006552-2019
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM
BOWES, J.
James Adam Clements appeals from his December 4, 2020 judgment of sentence imposed after the trial court found him guilty of driving under the influence ("DUI") of a controlled substance. We affirm.
The trial court summarized the facts as follows:
On August 24, 2019, Pennsylvania State Trooper Ross Greenwood and Corporal Tyrone Bradley were assigned to marked patrol vehicle K2-16 and attired in full uniform. At approximately [12:03 a.m.], Trooper Greenwood and Corporal Bradley were engaged in a domestic security check at the Firebirds restaurant located on Wilmington Pike in Concord Township, Delaware County, Pennsylvania. Trooper Greenwood witnessed two vehicles parked behind the closed Firebirds restaurant. Two males were observed in a red Acura with its engine on and headlights activated. The driver, a white male, jumped out of the vehicle and said, "It's ok I work here." The operator of the vehicle was later identified as [Appellant] by his New Jersey driver's license.
Trooper Greenwood smelled an odor of marijuana emanating from [Appellant] and as the Trooper approached the vehicle, the odor of marijuana grew stronger. In plain view,
Trooper Greenwood observed a burnt suspected marijuana blunt cigarette in the center console. A search yielded a small amount of suspected marijuana and drug paraphernalia in the center console and the cupholder of the vehicle.
[Appellant] informed Trooper Greenwood he smoked marijuana at 11:30 p.m. before he drove to Firebirds restaurant to meet a friend. [Appellant] also admitted he was smoking marijuana when the Pennsylvania State Troopers arrived on scene. [Appellant] underwent field sobriety tests, was placed under arrest, and was transported to Riddle Memorial Hospital to complete a blood draw.Trial Court Opinion, 3/15/21, at 1-3.
Appellant was charged with DUI of a controlled substance. The Commonwealth filed a motion in limine to exclude the testimony of Appellant's proposed expert, Lawrence Guzzardi, M.D. Appellant filed a response arguing that Dr. Guzzardi's testimony was necessary to counter the Commonwealth's expert finding that Appellant was impaired. On October 23, 2020, the trial court granted oral argument on the motion before excluding the testimony and report. Appellant immediately proceeded to non-jury trial. The Commonwealth proffered the testimony of Trooper Greenwood and Richard Cohn, M.D., a toxicologist who opined that Appellant's blood contained marijuana. The Commonwealth also admitted the dash camera video of the entire interaction between Trooper Greenwood and Appellant. Appellant elected not to testify, but argued that the marijuana detected in his blood was too low to impair his ability to operate a motor vehicle. The trial court found Appellant guilty of DUI of a controlled substance, an ungraded misdemeanor.
On December 4, 2020, the court sentenced Appellant to seventy-two hours to six months of imprisonment and ordered him to pay a mandatory $1,000 fine, costs, and a lab fee. Appellant filed a post-sentence motion which was denied in part and granted in part. The instant appeal followed. Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.
Trial counsel misplaced his copy of the video, admitted at trial as C-1. The court granted his request that the Commonwealth provide him with a new copy of the video but denied the motion in all other respects.
Appellant presents the following issues for our review:
1. Did the trial court err by excluding the testimony of defense expert, Lawrence Guzzardi, M.D., to refute the testimony and lab report conclusions of the Commonwealth expert witness?
2. Did the trial court err and impose an illegal sentence when it ordered imposition of a fine, without first assessing [A]ppellant's ability to pay?Appellant's brief at 4.
First, Appellant challenges the trial court's decision to exclude expert testimony. See Appellant's brief at 9-13. We review a trial court's decision to admit or exclude expert opinion testimony under an abuse of discretion standard. See Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 881 (Pa.Super. 2019). An abuse of discretion "occurs if the trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious; that fails to apply the law; or that is motivated by partiality, prejudice, bias or ill-will." Id. (quoting Hutchinson v. Penske Truck Leasing Co., 876 A.2d 978, 984 (Pa.Super. 2005)).
Herein, the trial court prohibited Dr. Guzzardi, a toxicologist, from submitting a report or offering testimony, since his planned testimony would not have disputed the test result indicating the presence of marijuana in Appellant's blood. See N.T., 10/23/20, at 207-15. Instead, he planned to offer testimony questioning Appellant's level of impairment. Id. The trial court reasoned that, since the controlled substance subsection at issue prohibited a person from operating a vehicle with any amount of the controlled substance to be within the accused's system, testimony regarding the level of Appellant's impairment was not relevant. Id. at 208; see also Pa.R.E. 402 (explaining that relevant evidence is evidence that tends to establish a material fact in the case or make a fact at issue more or less probable). We agree.
Appellant proceeded to trial on a charge of 75 Pa.C.S. § 3802(d)(1)(i), DUI of a controlled substance, which provides:
(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[.]75 Pa.C.S. § 3802(d)(1)(i) (emphasis added). Therefore, for the Commonwealth to meet its burden of proof, it needed to prove: (1) that Appellant was in actual physical control or operated the motor vehicle and (2) that he had a schedule I controlled substance in his blood. Id.
We recently reviewed a trial court's decision to exclude Dr. Guzzardi's expert testimony concerning the impairing effects of marijuana in a prosecution that involved § 3802(d)(1)(i). See Commonwealth v. May, ___ A.3.d___, 2022 WL 453581 (Pa.Super. 2022). In May, field sobriety testing was completed. However, the Commonwealth proved its case through the admission of a blood test result that showed the presence of marijuana in the appellant's blood. The defense attempted to present the testimony of Dr. Guzzardi, who planned to question the appellant's level of impairment. However, the Commonwealth objected, and the trial court sustained the objection, excluding the testimony. On appeal, we affirmed, reviewing the statute and relevant case law and concluding that § 3802(d)(1) did not require that a driver be impaired, only that a driver had any amount of a specifically enumerated controlled substance in his blood. Id. at *2 (citing Commonwealth v. Hutchins, 42 A.3d 302, 310 (Pa.Super. 2012)(finding that a conviction under § 3802(d)(1) did not require that a driver be impaired)). Accordingly, we found that the trial court did not commit an abuse of discretion when it excluded the irrelevant expert testimony about Appellant's level of impairment. Id.
Dr. Guzzardi's planned testimony in the instant case, just as in May, would not have challenged the methodology behind the chemical testing of Appellant's blood, nor the findings that the Appellant had a schedule I controlled substance in his blood while driving. See N.T., 10/23/20, at 207-15. Thus, it would not have controverted the Commonwealth's evidence and the trial court was well within its discretion to deny the testimony. Accordingly, May controls and no relief is due on Appellant's first issue.
In his second claim, Appellant alleges that the court erroneously imposed a mandatory fine without first assessing his ability to pay, which was in violation of 42 Pa.C.S. § 9726(c), Pa.R.Crim.P. 706(C), and the excessive fines clause of the Pennsylvania and United States Constitutions. See Appellant's brief at 13-15. Since this argument challenges the legality of Appellant's sentence, "[o]ur standard of review over such questions is de novo and our scope of review is plenary." Commonwealth v. Wolfe, 106 A.3d 800, 802 (Pa.Super. 2014).
For ease of review, we first set forth the statutory provisions at issue in this appeal. Section 9726(c) provides, in relevant part, as follows:
The court shall not sentence a defendant to pay a fine unless it appears of record that:
(1) the defendant is or will be able to pay the fine[.]42 Pa.C.S. § 9726(c). Rule 706(C) states:
The court, in determining the amount and method of payment of a fine or costs shall, insofar as is just and practicable, consider the burden upon the defendant by reason of the defendant's financial
means, including the defendant's ability to make restitution or reparations.Pa.R.Crim.P. 706(C). Finally, § 3804(c)(1)(ii) affords:
An individual who violates section 3802 . . . (d) shall be sentenced as follows:
(1) for a first offense, to:
. . .
(ii) pay a fine of not less than $1,000 nor more than $5,000[.]75 Pa.C.S. § 3804(c)(1)(ii) (emphasis added).
Appellant concedes that the fine imposed here was required by 75 Pa.C.S. § 3804(c)(1)(ii), but nevertheless asserts that § 3804, § 9726, and Rule 706(C) can be harmonized by reading the provisions so as to conclude that the mandatory fine must be imposed unless the defendant cannot afford it. See Appellant's brief at 15-29. We disagree.
In May, we reiterated the long-held rule that § 9726(c) did not apply to mandatory fines. May, supra at *4 (citing Commonwealth v. Gipple, 613 A.2d 600, 601 n.1 (Pa.Super. 1992)) (finding that § 9726(c) did not apply to mandatory fines). Instead, the ability to pay inquiry of § 9726(c) was required only for non-mandatory fines. Id. (citing Commonwealth v. Ford, 217 A.3d 824, 829 (Pa. 2018)). Second, we relied on relevant authority confirming that Rule 706(C) only required the court to hold an ability-to-pay hearing when a defendant faced incarceration for failure to pay court costs previously imposed on him. Id. at *5-*6 (citing Commonwealth v. Childs, 63 A.3d 323, 326 (Pa.Super. 2013)). Finally, we analyzed 75 Pa.C.S. § 3804(c)(1)(ii), conducting an Eisenberg proportionality analysis and concluding that § 3804(c)(1)(ii) did not violate the excessive fines clause of the Pennsylvania Constitution. Id. at *6-*8 (citing Commonwealth v. Eisenberg, 98 A.3d 1268, 1279 (Pa. 2014) (finding a statute mandating a $75,000 fine for a $200 theft was disproportionate to the offense and, therefore, violated the excessive fine clause of the Pennsylvania Constitution)).
Herein, as in May, Appellant was ordered to pay a mandatory fine pursuant to § 3804(c)(1)(ii). He also did not face incarceration for failure to pay the mandatory fine. Thus, § 9726 and Rule 706(C) are inapplicable. Appellant's final argument, that § 3804(c)(1)(ii) violated the excessive fines clause, must also fail for the reasons outlined in May. See May, supra at *6-*8. A $1,000 fine is proportional to the crime, since it is unlikely to deprive Appellant of his livelihood and the Commonwealth has a compelling interest in protecting its citizens from the dangers posed by impaired driving. Id. at *8 (citing Commonwealth v. Tarbert, 535 A.2d 1035, 1042 (Pa. 1987)). Appellant's arguments contradict May and therefore must fail. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.Super. 2014) ("This Court is bound by existing controlling precedent as long as the decision has not been overturned by our Supreme Court."). Therefore, no relief is due on Appellant's final issue.
Public Justice and the American Civil Liberties Union have filed amicus curiae briefs in support of Appellant's position. However, their arguments are more properly addressed to this Court en banc or to our Supreme Court, as we lack the authority to overrule May or to make policy determinations.
Judgment of sentence affirmed.
Judgment Entered.