Opinion
217 WDA 2024
08-26-2024
COMMONWEALTH OF PENNSYLVANIA v. CRUZ WAGNER Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered November 29, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0003193-2022.
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.[*]
MEMORANDUM
STEVENS, P.J.E.:
Appellant, Cruz Wagner, appeals nunc pro tunc from the judgment of sentence entered in the Court of Common Pleas of Erie County following his conviction at a non-jury trial on the charges of driving while under the influence ("DUI") of alcohol: general impairment/incapable of driving safely, DUI: controlled substance-impaired ability (marijuana), possession of marijuana, and possession of drug paraphernalia. After a careful review, we affirm.
As discussed infra, Appellant's direct appeal rights were reinstated via the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-46.
75 Pa.C.S.A. § 3802(a)(1), 75 Pa.C.S.A. § 3802(d)(2), 35 P.S. § 780-113(a)(31), and 35 P.S. § 780-113(a)(32), respectively.
The relevant facts and procedural history are as follows: Following his arrest, Appellant, who was represented by counsel, proceeded to a non-jury trial on September 28, 2023. At trial, Officer Jill Flannigan, who is with the Department of Conservation and Natural Resources at the Presque Isle State Park in Millcreek Township, testified that she was on duty on August 3, 2022. N.T., 9/28/23, at 8. At approximately 6:00 p.m., she received a call from the Millcreek police dispatch "for a male in the Vista 4 parking lot that could not breathe." Id. at 9. Officer Flannigan testified that she immediately left the ranger station and drove to the Vista 4 parking lot. Id. at 9-10. She estimated that it took her "two minutes" to reach the Vista 4 parking lot, which is approximately half a mile from the ranger station. Id. at 10.
Officer Flannigan testified that she is responsible for enforcing the Pennsylvania Crimes Code, Traffic Code, Fishing and Gaming Commission Rules, and Department of Conservation and Natural Resources Rules. N.T., 9/28/23, at 8 Further, Officer Flannigan testified about her extensive training as it relates to identifying when a motorist is impaired by alcohol and/or a controlled substance. She testified she attended the police academy where she received training regarding the visual signs of alcohol and controlled substance impairment. Id. at 18. Additionally, she was an emergency medical technician in the United States Air Force and an emergency medical responder at Presque Isle State Park. Id. Her medical training included looking for visual signs of alcohol and controlled substance impairment. Id.
Officer Flannigan indicated that, upon arriving at the Vista 4 parking lot, she "saw a male in a 2014 Nissan Pathfinder with the engine running and the keys in the ignition. He was in and out of consciousness. He was yelling and then he would pass out." Id. Officer Flannigan clarified the male was sitting in the driver's seat and slumped over the steering wheel. Id. at 12. She asked the male for his name, but he was unable to provide it. Id. at 10. She testified that she could smell alcohol on his breath, and when his eyes were open, they were bloodshot. Id. at 18. She observed that Appellant's speech was slurred, his movements were slow, and he was unable to understand normal questions. Id. at 19.
Officer Flannigan testified that "[she] could smell burnt marijuana. [She] looked over and saw his driver's license attached to the arm rest of the Nissan Pathfinder to get his name. He again passed out, [and] he had vomit all over the front of him." Id. at 10. Officer Flannigan indicated the driver's license belonged to Appellant. Id. at 11.
Officer Flannigan testified the driver's side door of the vehicle was open, and Appellant "was starting to fall out of the vehicle[.]" Id. Accordingly, she, as well as the lifeguard manager who had responded to the scene, removed Appellant from the vehicle. Id. at 11-12. After they did so, Appellant began yelling, said he couldn't breathe, and passed out. Id. at 12. They lowered Appellant to the ground, and "he started flailing around." Id.
Officer Flannigan testified that, in addition to Appellant, a two-year-old child was in the vehicle in a car seat, and after Appellant was removed from the vehicle, two young boys "came running up screaming that's their daddy." Id. Officer Flannigan indicated paramedics arrived and were "trying to give [Appellant] oxygen and get vitals, which would be blood pressure, and he just kept swinging his arms." Id. at 13. At one point, Appellant said, "I've been drinking," and he then passed out again. Id. Officer Flannigan indicated her encounter with Appellant lasted approximately ten minutes, and he was then removed from the scene in an ambulance. Id. at 13-14. Officer Flannigan testified that, based on her training and experience, Appellant demonstrated clear visual symptoms of being impaired by both alcohol and marijuana. Id. at 18.
Officer Flannigan testified that, after Appellant was removed from the scene, she saw in plain view a "Four Loko can sitting in the cup holder easily accessible to the driver of the vehicle. There were also smoked blunts in the other cup holder in an ash tray, which were also in plain view." Id. at 14. She noted that she also observed a Four Loko can on the passenger side floor of the vehicle in plain view. Id. She clarified that "Four Loko" is a type of alcoholic beverage. Id.
Officer Flannigan indicated that she subsequently secured a search warrant for the vehicle, which was registered to Appellant. Id. at 15. Upon executing the search warrant, in addition to the Four Loko cans, she seized a gun magazine with ammunition, cash, a small baggie of marijuana from the cargo area, a marijuana grinder containing fresh ground marijuana from the front seat cup holder, and three marijuana blunts from the ash tray. Id. at 16-17.
Officer Flannigan noted that, at the hospital, Appellant was not capable of submitting to a blood draw due to his state of unconsciousness, and when she informed the head nurse at the hospital that she was applying for a search warrant, the nurse refused to draw blood from Appellant. Id. at 19.
Accordingly, for a variety of reasons, no blood was drawn from Appellant. Id.
Officer Flannigan indicated that Appellant was the only adult in the vehicle, and, in her opinion, "he clearly drank…and smoked somewhere between Pittsburgh and Presque Isle State Park." Id. at 22. Officer Flannigan noted that, during Appellant's preliminary hearing and while under oath on December 27, 2022, Appellant admitted to the magisterial district judge that he had smoked marijuana on the date in question. Id. at 19-20. Appellant informed the magisterial district judge that "he deserved to smoke that marijuana because he was shot in the face, and he deserved to have that marijuana while he recreated with his kids." Id. at 20. Also, Appellant indicated during the preliminary hearing that he had driven from Pittsburgh to Presque Isle State Park. Id. at 22.
On cross-examination, Officer Flannigan admitted that she did not administer field sobriety tests due to Appellant's condition. Id. at 24. She noted Appellant never indicated to her that he had heat stroke, and the air conditioner was running in his vehicle. Id. at 25. She confirmed Appellant said numerous times that he couldn't breathe, and he had been drinking. Id. at 26.
Appellant testified in his own defense. He indicated he is a resident of Pittsburgh, and on August 3, 2022, he took three of his children to the Presque Isle State Park. Id. at 30. Appellant testified he parked his vehicle "safely" between the yellow lines in a parking space and exited his vehicle to urinate behind a tree. Id. at 31. After he urinated, he entered his vehicle, turned on the air conditioner, and told his two sons to get help because he could not breathe. Id. He noted that he had been at the Presque Isle State Park for "maybe five minutes" when he started to have trouble breathing. Id.
Appellant denied that he had been smoking marijuana prior to this time, and he noted he intended to use the marijuana while he and his children were at the state park's beach. Id. at 32. He indicated the Four Loko can in the middle console was "half-way full." Id. He explained that he drank some because he had no water and had to get himself "in the right state of mind." Id. Appellant testified he does not know why he became sick on the day in question, but he suspects that he had heat stroke from the long drive from Pittsburgh to the Presque Isle State Park. Id. at 33. He denied that he would have driven his children while he was impaired by alcohol or drugs. Id.
Appellant specifically testified he has been under the influence of alcohol and marijuana in his lifetime, so he knows "how it feels." Id. at 34. Thus, he was certain he was not "high" on marijuana or intoxicated from alcohol on the day in question because he did not feel that way. Id. at 35.
On cross-examination, Appellant admitted he did not have a medical marijuana card. Id. at 39. He indicated that, at the hospital, he was diagnosed with dehydration. Id. He admitted his vehicle had "working air conditioning." Id. at 40.
At the conclusion of the bench trial, the trial court found Appellant guilty of the offenses indicated supra. On November 29, 2023, the trial court sentenced Appellant to an aggregate of five years of restrictive probation to begin with thirty days of incarceration and followed by ninety days of electronic monitoring. Appellant filed a timely post-sentence motion. On December 19, 2023, the trial court granted, in part, and denied, in part, the post-sentence motion. Specifically, the trial court granted Appellant's request that he be released from prison immediately and placed on electronic monitoring. The trial court denied the post-sentence motion in all other respects.
Appellant did not file a timely notice of appeal; however, on January 19, 2024, he filed a timely PCRA petition seeking the restoration of his direct appeals rights due to trial counsel's failure to file a requested direct appeal, and the PCRA court granted the petition on February 2, 2024. This appeal followed on February 13, 2024. All Pa.R.A.P. 1925 requirements have been met.
On appeal, Appellant sets forth the following issue in his "Statement of the Questions Presented" (verbatim):
Did the Commonwealth present sufficient evidence to sustain Appellant's conviction?
Appellant's Brief at 2 (unnecessary bold and capitalization omitted).
In the argument portion of his brief, Appellant alleges the evidence was insufficient to sustain his DUI convictions under 75 Pa.C.S.A. § 3802(a)(1) and (d)(2). Specifically, Appellant claims the evidence was insufficient to enable the trial court to find that Appellant "was in control of a vehicle while intoxicated." Appellant's Brief at 7.
Appellant has developed no argument regarding the sufficiency of the evidence for his convictions under 35 P.S. § 780-113(a)(31) and (32) relating to possession of marijuana and possession of drug paraphernalia. Accordingly, we decline to review the sufficiency of the evidence as to these convictions.
Initially, we note this Court's standard of review when considering a challenge to the sufficiency of the evidence requires us to look at the evidence in a light most favorable to the Commonwealth, as verdict winner, and determine whether the evidence presented, actual and/or circumstantial, was sufficient to enable a fact-finder to find every element of the crime charged, beyond a reasonable doubt. See Commonwealth v. O'Brien, 939 A.2d 912 (Pa.Super. 2007).
In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and the 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.Id. at 913-914 (quotation omitted). The trial court, as the finder of fact, is free to believe all, some, or none of the evidence presented and is free to determine the credibility of the witnesses. Commonwealth v. Dailey, 828 A.2d 356 (Pa.Super. 2003). In conducting review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Commonwealth v. Baumgartner, 206 A.3d 11, 14-15 (Pa.Super. 2019).
In the case sub judice, Appellant challenges his DUI convictions. The relevant statutory provisions provide as follows:
§ 3802. Driving under influence of alcohol or controlled substance
(a) General impairment.--
(1) 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.
***
(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.A. § 3802(a)(1), (d)(2) (bold in original).
As it pertains to the first element for both Subsections, i.e., that an individual was driving, operating or in actual physical control of the movement of a vehicle, this Court has previously determined the following:
The term 'operate' requires evidence of actual physical control of either the machinery of the motor vehicle or the management of the vehicle's movement, but not evidence that the vehicle was in motion. The Commonwealth can establish through wholly circumstantial evidence that a defendant was driving, operating or in actual physical control of a motor vehicle. Courts review a combination of the following factors to determine whether a person had 'actual physical control' of an automobile: the motor running, the location of the vehicle, and additional evidence showing that the defendant had driven the vehicle. A determination of actual physical control of a vehicle is based upon the totality of the circumstances.Commonwealth v. Fallon, 275 A.3d 1099, 1105 (Pa.Super. 2022) (citations omitted).
Regarding the second element, this Court has held the consumption of alcohol or a controlled substance must have "substantially impaired the normal mental and physical faculties required to safely operate the vehicle. Substantial impairment, in this context, means a diminution or enfeeblement in the ability to exercise judgment, to deliberate or to react prudently to changing circumstances and conditions." Commonwealth v. Palmer, 751 A.2d 223, 228 (Pa.Super. 2000). Moreover, our Supreme Court has relevantly held:
The types of evidence that the Commonwealth may proffer in [such cases] include[,] but are not limited to…the offender's actions and behavior, including manner of driving[;]…demeanor, including toward the investigating officer; physical appearance,
particularly bloodshot eyes and other physical signs of intoxication; odor of alcohol [or marijuana], and slurred speech.Commonwealth v. Segida, 604 Pa. 103, 985 A.2d 871, 879 (2009).
Initially, following our review of Appellant's argument in the case sub judice, we observe that Appellant asks this Court to ignore the above-stated standard of review which requires us to consider the evidence in the light most favorable to the Commonwealth as verdict winner, and instead, review the evidence in the light most favorable to him. This we cannot and will not do.
Moreover, the record confirms that the Commonwealth did, in fact, present sufficient evidence to support Appellant's DUI convictions. Specifically, the evidence demonstrated that Appellant was operating or in actual physical control of his vehicle at the time in question. For example, Officer Flannigan discovered Appellant's vehicle parked in the state park's parking lot with the engine running and the keys in the ignition. See Fallon, supra. Appellant was sitting in the driver's seat of the vehicle. Additionally, Appellant admitted that he had driven his three children from Pittsburgh to the Presque Isle State Park, and within five minutes of arriving at the state park, he instructed his two sons to get help. Accordingly, as the trial court properly held, "the evidence met the standard of operating a motor vehicle [as discussed in] Fallon." Trial Court Opinion, filed 4/1/24, at 2.
We note that Appellant suggests the Commonwealth was required to show he was under the influence and rendered incapable of safely driving at the time he traveled from Pittsburgh to the Presque Isle State Park, i.e., while his vehicle was in motion. However, as indicated supra, this Court has rejected the assertion the motorist's vehicle must be in motion for purposes of the DUI statute. Rather, the motorist must have been "driving, operating or in actual physical control of a motor vehicle." Fallon, 275 A.3d at 1105.
Furthermore, the evidence demonstrated that Appellant was operating or in actual physical control of the movement of his vehicle during the time when he was rendered incapable of safely doing so due to the consumption of alcohol for Subsection 3802(a)(1) and a controlled substance for Subsection 3802(d)(2). Specifically, as the trial court held:
At trial, the charging officer, Jill Flannigan, stated that she was employed by the Department of Conservation and Natural Resources at [Presque Isle State Park] and conducted the investigation and arrest of [Appellant] in this case. The [trial] court found her testimony to be credible. She testified that she had smelled burnt marijuana and alcohol on [Appellant]. She also testified that a search of the vehicle had been conducted pursuant to a search warrant that she had obtained. In conjunction with that, the Commonwealth provided photographs, which included pictures of a Four Loko can located in the [front seat] cup holder and another Four Loko [can] on the passenger side of the vehicle[.] Testimony indicated that Four Loko was an alcoholic beverage. That same photograph showed vomit on the driver's side of the motor vehicle. There were also photographs of a small baggie of marijuana and a marijuana grinder. She further testified that she observed three blunts in the ash tray of the vehicle, and the marijuana grinder had fresh marijuana ground in it.
Officer Flannigan testified she was an experienced officer and had been trained in DUI investigations. She also indicated that she had been an emergency medical technician in the United States Air Force, as well as having received training as an emergency medical responder, and was familiar with the signs of impairment. She reiterated that she smelled alcohol and burnt marijuana emanating directly from [Appellant]. She stated that his eyes were bloodshot, and he had slurred speech, slowed movements, and an inability to understand normal questions. She testified that he said, "I've been drinking," when they were giving him medical attention.
Finally, she testified that, when [Appellant] appeared at his preliminary hearing, he stated that he "deserved to smoke marijuana because he was shot in the face. He deserved to have that marijuana while he recreated with his kids." At the time of trial, [Appellant] testified in his own defense and offered as his defense that he was not under the influence of drugs or alcohol; but rather, he was suffering from the symptoms of heat stroke or some other similar medical situation. The [trial] court did not find his testimony to be credible.
The [trial] court does acknowledge that no blood draw was performed, and [Appellant] did have difficulty breathing and needed medical attention. However, there was no direct evidence to support his defense that he was suffering from heat stroke or some other actual medical situation. Instead, his symptoms were much more consistent with someone who had consumed drugs and alcohol, and [he] was under the influence of drugs and alcohol [to a degree which impaired his ability to safely drive] at the time he was operating his vehicle.Trial Court Opinion, filed 4/1/24, at 2-3 (citations to record omitted).
We agree with the trial court's sound analysis. Officer Flannigan testified that Appellant showed visible signs of intoxication, including loss of consciousness, inability to communicate effectively, slurred speech, bloodshot eyes, slow movements, and vomiting. She noted he was slumped over the steering wheel, almost fell out of the vehicle, and flailed around when he was placed on the ground. She indicated Appellant blurted out that he had been drinking. She testified to smelling alcohol and burnt marijuana emanating from Appellant and his vehicle. Further, while Officer Flannigan did not directly testify that, in her opinion Appellant was incapable of safely driving due to intoxication, the record reflects that she held such an opinion after observing Appellant in the parking lot at the time in question. See Commonwealth v. Williams, 176 A.3d 298, 306 (Pa.Super. 2017) (indicating the Commonwealth may sustain its burden of proving every element of the crime by circumstantial evidence).
For all of the aforementioned reasons, we conclude the evidence was sufficient to sustain Appellant's DUI convictions under Subsections 3802(a)(1) and (d)(2). Accordingly, we find no merit to Appellant's sufficiency issues, and we affirm his judgment of sentence.
Judgment of Sentence Affirmed.
Judgment Entered.
[*] Former Justice specially assigned to the Superior Court.