Commonwealthv.Pinhak

SUPERIOR COURT OF PENNSYLVANIAMar 22, 2019
J-S10041-19 (Pa. Super. Ct. Mar. 22, 2019)

J-S10041-19 No. 1949 EDA 2018

03-22-2019

COMMONWEALTH OF PENNSYLVANIA Appellee v. ROBERT PINHAK, Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered June 11, 2018
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0007242-2017 BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS, J. MEMORANDUM BY GANTMAN, P.J.E.:

Retired Senior Judge assigned to the Superior Court. --------

Appellant, Robert Pinhak, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his bench trial conviction for driving under the influence of a controlled substance or a combination of drugs ("DUI"). We affirm.

75 Pa.C.S.A. § 3802(d)(2).

In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.

Page 6, footnote 4 of the trial court opinion states that Officer Curran attempted to obtain Appellant's medical records by search warrant and learned Appellant had refused to submit to blood and urine testing at the hospital. The record shows that the court sustained Appellant's hearsay objection to Officer Curran's testimony about Appellant's refusal to submit to blood and urine tests.

Appellant raises one issue for our review:

WHETHER THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURT'S VERDICT FINDING APPELLANT GUILTY OF DRIVING UNDER THE INFLUENCE: CONTROLLED SUBSTANCE [IMPAIRED ABILITY]—FIRST OFFENSE [(75 PA.C.S.A. SECTION 3802(D)(2))], WHERE THE COMMONWEALTH PRESENTED NO BLOOD EVIDENCE, NO EVIDENCE OF APPELLANT'S REFUSAL TO SUBMIT TO A BLOOD TEST ORDER OR BREATHALYZER, NO EXPERT TESTIMONY THAT APPELLANT WAS UNDER THE INFLUENCE OF ALCOHOL OR SCHEDULE 1 NARCOTICS, AND THE ARRESTING OFFICER DID NOT CONDUCT A FIELD SOBRIETY TEST OR EVEN OBSERVE APPELLANT DRIVING HIS VEHICLE?

(Appellant's Brief at 4).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Richard M. Cappelli, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of the question presented. ( See Trial Court Opinion, filed September 20, 2018, at 2-8) (finding: Commonwealth presented sufficient evidence to support DUI conviction, even if arresting officer did not conduct field sobriety tests or observe Appellant actually driving vehicle; officer is a twelve-year police veteran with certification as a drug recognition expert; Appellant was obviously unconscious and unresponsive due to opiate overdose; evidence established that Appellant was incapable of safe driving).

Appellant relies on Commonwealth v. Gause , 164 A.3d 532 (Pa.Super. 2017), appeal denied, 643 Pa. 188, 173 A.3d 267 (2017), for the proposition that the lay opinion of a law enforcement officer is insufficient to prove that Appellant was under the influence of narcotics, where there is no expert testimony, no blood test, no refusal for a blood test, no admission of drug use, no recovery of narcotics, and no typical or obvious indicia of narcotic use. Instantly, the Commonwealth did not present expert testimony. The arresting officer, however, had a multitude of prior experiences involving opiate overdoses, the officer found Appellant unconscious in the middle of a busy intersection, Appellant exhibited obvious physical signs of opiate overdose, Appellant remained unconscious despite shaking and chest rubbing, and Appellant regained consciousness only after the officer administered two doses of Narcan. This record supports the trial court's decision. Accordingly, we affirm based on the trial court opinion.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/22/19

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