Com. v. Schram, T. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS JOHN SCHRAM :
:
Appellant : No. 249 WDA 2022
Appeal from the Judgment of Sentence Entered February 14, 2022
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000529-2021
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED: JANUARY 11, 2023
Appellant, Thomas John Schram, appeals from the February 14, 2022
judgment of sentence entered in the Court of Common Pleas of Clearfield
County after the trial court, in a non-jury trial, convicted Appellant of, inter
alia, driving under the influence (“DUI”) of a drug or combination of drugs.1
We affirm.
The trial court summarized the factual history as follows:
The case at bar involved an incident in Clearfield County[,
Pennsylvania,] on October 22, 2019. Just before [5:00 p.m.],
Pennsylvania State Police [("PSP")] received a [911 emergency]
call from a motorist about an erratic driver in a gray [vehicle].
Trooper Kacey Osborne was dispatched to [a convenience store]
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* Retired Senior Judge assigned to the Superior Court.
1 75 Pa.C.S.A. § 3802(d)(2). Appellant was also found guilty of driving on
roadways laned for traffic and careless driving. 75 Pa.C.S.A. §§ 3309(1) and
3714(a), respectively.
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in Penfield, [Pennsylvania,] where the driver was reported to have
stopped his vehicle. Upon her arrival, Trooper Osborne found the
vehicle pulled into a parking spot, with the driver asleep in the
driver's seat. Trooper Osborne was able to wake the driver after
roughly thirty seconds of knocking on [the vehicle’s] window. The
driver was identified as [Appellant]. After speaking with
[Appellant], Trooper Osborne suspected [Appellant] was under
the influence [of drugs or alcohol and asked him to perform] field
sobriety tests, to which [Appellant] agreed. Following the field
sobriety tests, Trooper Osborne arrested [Appellant] for driving
under the influence, and she transported [Appellant] to the
hospital for a voluntary blood draw. The results of the blood tests
showed clonazepam, carisoprodol, and buprenorphine in
[Appellant’s] blood.[2]
Trial Court Opinion, 4/11/22, at 1-2 (extraneous capitalization omitted).
On February 5, 2020, Appellant was charged with the aforementioned
criminal offenses.3 On November 3, 2021, at the conclusion of a non-jury
trial, the trial court found Appellant guilty of the aforementioned criminal
offenses. On February 14, 2022, the trial court sentenced Appellant to 72
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2 “Clonazepam is an intermediate to long-acting benzodiazepine hypnotic used
in the treatment of insomnia and in the prevention and treatment of various
seizure disorders.” Commonwealth’s Exhibit 5 at 3. “Carisoprodol is a
centrally-acting skeletal muscle relaxant and sedative.” Id. “Buprenorphine
is a Schedule III controlled synthetic opioid that has both analgesic and opioid
antagonist activities. . . . While buprenorphine can counteract some of the
effects of powerful opiates[,] it also has opiate-like effects of its own[,
including] analgesia, drowsiness, and sedation.” Id. at 2.
3The criminal complaint also charged Appellant with DUI – of a Schedule II or
Schedule III controlled substance, as defined by The Controlled Substance,
Drug, Device, and Cosmetic Act, 35 P.S. § 780-101 to § 780-144, as well as
DUI – of a metabolite of a Schedule II or Schedule III controlled substance.
75 Pa.C.S.A. § 3802(d)(1)(ii) and (iii). Prior to the start of Appellant’s
non-jury trial, the Commonwealth withdrew these two criminal charges.
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hours to 6 months’ incarceration for his DUI conviction. No further sentence
was imposed for the two remaining criminal convictions. Appellant was
ordered to pay fines and costs on all three criminal convictions. This appeal
followed.4
Appellant raises the following issue for our review:
Did the Commonwealth fail to present sufficient evidence to
establish the crime of driving under the influence of a drug or
combination of drugs, in violation of 75 Pa.C.S.A. § 3802(d)(2),
where the evidence failed to demonstrate a causal link between
the prescription drugs detected in Appellant’s blood and his
purported inability to safely operate his vehicle?
Appellant’s Brief at 4.
Our standard and scope of review of a challenge to the sufficiency of the
evidence are well-settled.
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. 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 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. The Commonwealth
may sustain its burden of proof or proving every element of the
crime beyond a reasonable doubt by means of wholly
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4 Both Appellant and the trial court complied with Pa.R.A.P. 1925. The
Commonwealth filed a letter with this Court on October 24, 2022, stating that
it concurred with the trial court’s April 11, 2022 opinion and adopted the same
in lieu of filing an appellee’s brief.
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circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all the evidence actually
received must be considered. Finally, the trier[-]of[-]fact 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. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also
Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating that, in
reviewing a claim of insufficient evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier[-]of[-]fact could have found the essential elements of the crime
beyond a reasonable doubt” (emphasis in original)).
[T]he [trier-of-fact's] individualized assessment of the credibility
of the trial evidence is, as a general principle, not to be questioned
by an appellate court as part of its review, even if the evidence is
conflicting. [C]ourts presume the [trier-of-fact] resolved
evidentiary disputes reasonably so long as sufficient evidence
supports the verdict. [M]ere inconsistency and conflicts in
witnesses[’] testimony, by itself, will not furnish a basis for an
appellate court to reverse a conviction [] on the grounds of
evidentiary insufficiency.
Brown, 52 A.3d at 1165 (citations omitted). Rather, the trier-of-fact’s
resolution will only be disturbed “in those exceptional instances [] where the
evidence is so patently unreliable that the [trier-of-fact] was forced to engage
in surmise and conjecture in arriving at a verdict based upon that evidence.”
Id., citing Commonwealth v. Karkaria, 625 A.2d 1167, 1170 (Pa. 1993).
To preserve a sufficiency claim, the appellant’s Rule 1925(b) statement must
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specify the element or elements upon which the evidence was insufficient.
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super. 2008).
Section 3802(d)(2) of the Vehicle Code states, in pertinent part, that,
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(d)(2). In order to convict a defendant of a Section
3802(d)(2) DUI offense, the Commonwealth must prove that “while driving or
operating a vehicle, [the defendant] was under the influence of a drug to a
degree that impaired [his or her] ability to safely drive or operate a vehicle.”
Commonwealth v Griffith, 32 A.3d 1231, 1236 (Pa. 2011) (original brackets
omitted).
Our Supreme Court in Griffith, supra, held that,
[Section] 3802(d)(2) [does not require] expert testimony to
establish that the defendant's inability to drive safely was caused
by ingestion of a drug, even if it is a prescription drug, or drug
combination. [Rather,] in some cases, depending on the specific
facts and circumstances, expert testimony may be helpful, or
perhaps even necessary, to prove causation under [Section]
3802(d)(2), but we decline to hold that the need for expert
testimony is inherent in the statutory provision and thus
mandatory in all cases.
Id. at 1238. “The need for expert testimony in a [Section] 3802(d)(2)
prosecution must be evaluated on a case-by-case basis, taking into account
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not just the specific drug at issue, prescription or otherwise, but also the
nature and overall strength of the Commonwealth's evidence.” Id. at 1239.
“[E]xpert testimony is not necessary to establish impairment under [Section]
3802(d)(2) where there exists other independent evidence of impairment.”
Commonwealth v. Gause, 164 A.3d 532, 538 (Pa. Super. 2017), appeal
denied, 173 A.3d 267 (Pa. 2017).
Here, Appellant concedes “that he was operating a motor vehicle, that
he was observed driving in an erratic manner, [and] that he had the reported
quantities of prescription medications in his blood” on the day of the incident.
Appellant’s Brief at 11. Appellant contends, however, that the Commonwealth
failed to present sufficient evidence of the causal connection between the
prescription medications present in his blood and his erratic operation of a
motor vehicle without the offer of expert testimony. Id. Appellant argues
that an expert’s testimony was necessary to sufficiently demonstrate that the
erratic driving observed by the eyewitness who called 911 emergency services
and the balance issues observed by Trooper Osbourne during field sobriety
tests were caused by the prescription medication Appellant ingested earlier in
the day. Id. at 13. Appellant asserts that, although the Commonwealth
presented the testimony of an expert in forensic toxicology, “the
Commonwealth still failed to present sufficient evidence to permit the
[trier-]of[-]fact to infer a causal connection between the detected drugs and
[Appellant’s erratic driving].” Id. at 17.
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In finding sufficient evidence to establish the causation element of the
Section 3802(d)(2) offense, the trial court explained,
[t]o establish its case, the Commonwealth presented evidence
from three witnesses. The first witness was [an eyewitness who]
called 911 [emergency services] because of [Appellant’s] erratic
driving. During the trial, [the eyewitness] testified that he
observed [Appellant’s] vehicle swerving and weaving, to the point
that [Appellant’s] vehicle crossed the center line multiple times.
[The eyewitness] also recalled that the vehicle would repeatedly
speed up and slow down. At one point, [the eyewitness] observed
[Appellant’s] vehicle bump into a wall while he [] attempted to
stop behind a school bus. While following [Appellant, the
eyewitness] saw [Appellant] pull into the parking lot of [a
convenience store. The eyewitness pulled his vehicle into the
same parking lot and] remained in the parking lot until a [PSP]
trooper arrived. At no time did [the eyewitness] see [Appellant]
leave the parking lot. [The trial] court note[d] that [the
eyewitness’s] testimony was credible as to his recollection of the
events that day. Additionally, the Commonwealth presented the
recording of [the eyewitness’s 911] call, which supported his
testimony.
The second witness the Commonwealth presented was Trooper
Osborne. When [Trooper Osborne] arrived to the [convenience
store parking lot], she found [Appellant] asleep in the driver's seat
of his vehicle. Trooper Osborne testified that it took roughly thirty
seconds of knocking on the driver's [side] window to wake
[Appellant]. While Trooper Osborne was talking with [Appellant],
she noticed he looked disheveled, drowsy, and slightly confused.
Further, [Appellant] admitted to Trooper Osborne that he had
taken buprenorphine and carisoprodol earlier that day. Trooper
Osborne then requested [Appellant] perform field sobriety tests,
which [Appellant] agreed [to do].
During the field sobriety tests, Trooper Osborne detected multiple
signs of impairment. [Appellant’s] eyes appeared droopy and
tired during the horizontal gaze nystagmus test. Trooper Osborne
noticed [Appellant] had difficulty maintaining balance during her
instructions for the walk-and-turn test. Additionally, [Appellant]
missed multiple heel[-]to[-]toe steps and used his arms for
balance. During the one-leg-stand [test, Appellant] dropped his
leg several times, swayed, and raised his arms for balance. Lastly,
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[Appellant] displayed eyelid and body tremors during the modified
Romberg test[.5 Appellant] also calculated 55 seconds to be [the
equivalent of] 30 seconds. Following completion of the [field]
sobriety tests, [Appellant] was arrested for driving under the
influence, and he agreed to complete a blood draw.
The last witness the Commonwealth presented was Donna
Papsun, a forensic toxicologist[. ]Papsun was found to be an
expert in the field of forensic toxicology upon the agreement of
[Appellant. ]Papsun completed the report for the results of
[Appellant’s] blood test. She testified that [Appellant’s] blood was
positive for clonazepam, carisoprodol, buprenorphine, and their
metabolites, which are Schedule III and Schedule IV controlled
substances. In her expert opinion, [] any of the three substances
found in [Appellant’s] blood could [impair] a person's ability to
drive. The three substances in [Appellant’s] system are
depressants, and all three taken together "can have, this additive
central nervous system depressant effect."
While [] Papsun agreed that the levels within [Appellant’s] blood
were within the therapeutic range, she also opined that it
generally takes two weeks for a person to build up a tolerance to
these types of substances. Until a person's body establishes a
tolerance, they are likely to experience impairing effects from the
drugs. [Appellant] presented copies of his prescription records.
The records showed that he received [a] clonazepam
[prescription] on October 8, 2019, [a] buprenorphine
[prescription] on October 9, 2019, and [a] carisoprodol
[prescription] on October 16, 2019. [Appellant] additionally
testified that he had been incarcerated until October 8, 2019[,]
and was not taking the medications during his incarceration.
Based on [the] timeline presented, it is likely that [Appellant] was
still building a tolerance to, at [a] minimum, the carisoprodol, but
possibly all three substances.
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5 The Romberg test is a field sobriety test in which the suspect puts his or her
feet together so they are touching and puts his or her arms down along the
side of the body and, when told to do so, tilts his or her head backward, shuts
his or her eyes, and estimates the passage of 30 seconds in this position
before ending the test. N.T., 9/24/21, at 32.
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Trial Court Opinion, 4/11/22, at 4-6 (record citation and extraneous
capitalization omitted).
A review of the record demonstrates that the eyewitness observed
Appellant’s vehicle swerving “quite a bit.” N.T., 9/24/21, at 8. After observing
Appellant’s vehicle swerve into the on-coming lane of traffic, the eyewitness
contacted 911 emergency services. Id. Appellant’s vehicle was “constantly
weaving,” and “[t]here [were] a few times where [the eyewitness] was sure
that [Appellant] was going to hit another vehicle.” Id. at 9. At one point,
while Appellant’s vehicle was coming to a stop behind a school bus, the
eyewitness observed Appellant’s vehicle strike a retaining wall. Id. at 13-15.
The eyewitness also testified that “[t]here [were] points where [Appellant]
was driving fast and he would slow down and [then] he’d speed up and slow
down.” Id. at 16. The eyewitness followed Appellant’s vehicle into a
convenience store parking lot where Appellant parked his vehicle, and the
eyewitness parked his own vehicle a short distance away. Id. at 11. The
eyewitness maintained his observation of Appellant’s vehicle until the police
arrived. Id.
Trooper Osbourne testified that she was trained to determine if a
suspect was under the influence of drugs or alcohol and to administer various
field sobriety tests. Id. at 19. At the time of the incident, Trooper Osbourne
was also certified in advanced roadside impairment driving enforcement. Id.
at 20. In response to the 911 call, Trooper Osbourne located Appellant’s
vehicle in a convenience store parking lot, as reported by the eyewitness who
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placed the emergency call. Id. at 21. Appellant’s vehicle engine was still
running, and Trooper Osbourne found Appellant “slumped over asleep in the
driver’s seat.” Id. Trooper Osbourne was able to wake Appellant after
knocking on the vehicle’s driver’s side window with her fist for 30 seconds.
Id. at 22, 24. When Trooper Osbourne advised Appellant that she was
responding to reports of Appellant’s erratic driving, Appellant responded that
“he was tired.” Id. at 26. Appellant also admitted to taking several
prescription drugs earlier that day. Id. Trooper Osbourne described Appellant
as appearing dirty, disheveled, tired, drowsy, and “a little bit confused.” Id.
Trooper Osbourne, upon asking Appellant for identification, noted, however,
that Appellant did not fumble or demonstrate any difficulty in producing his
identification. Id. at 39. After Appellant agreed to perform several field
sobriety tests, he exited his vehicle and walked towards Trooper Osbourne’s
police cruiser. Id. at 27. As Appellant was walking towards the police cruiser,
Trooper Osbourne observed Appellant staggering. Id. at 40.
In performing the field sobriety tests, Appellant was unable to maintain
his balance during the instruction phase of the walk-and-turn test, and while
performing the test, Appellant missed multiple heel-to-toe steps and had to
use his arms for balance. Id. at 30-31. During the one-leg stand test,
Appellant dropped his leg 3 times, swayed, and used his arms for balance.
Id. at 31. Finally, during the Romberg test, while Trooper Osbourne did not
observe Appellant swaying, she did note that Appellant misjudged the 30
second length of time for performing the test and, instead, performed the test
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for 55 seconds, which, in Trooper Osbourne’s opinion, indicated Appellant’s
“internal clock [was] going slow.” Id. at 32. In sum, as Trooper Osbourne
explained, the field sobriety tests are not pass-or-fail tests, but, rather, allow
a police officer to observe the suspect for “clues of impairment.” Id. at 31.
In Appellant’s case, Trooper Osbourne observed several “clues of impairment”
on each of the tests Appellant performed. Id. at 31-33.
Without knowing additional information, the Commonwealth’s expert in
forensic toxicology testified that she was unable to provide an opinion to a
reasonable degree of scientific certainty as to whether the controlled
substances detected in Appellant’s blood on the day of the incident impaired
his ability to operate his motor vehicle. Id. at 55. The expert explained that
an impairment assessment, such as an assessment of Appellant’s ability to
operate his vehicle, requires knowledge of, inter alia, the person’s history with
the controlled substance, how long the person has been prescribed or using
the controlled substance, and whether there has been any change in the use
regimen or dosage. Id. at 57. The expert did opine, however, that, in
general, a controlled substance, such as the controlled substances found in
Appellant’s blood, could have an impairing effect on a person when the person
first starts using the controlled substance, and this impairment continues until
the person develops a tolerance for the adverse effects of the controlled
substance. Id. at 55, 59. A person develops a tolerance against the adverse
effects of the controlled substance, the expert explained, generally after two
weeks but that tolerance period can be prolonged if the person starts using
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additional controlled substances or if there is a change in the dosage of the
controlled substance. Id. at 60-61. When asked about the specific drugs
detected in Appellant’s blood, the expert stated that they were the “types of
drugs that have central nervous system depressant effects.” Id. at 55. In
her toxicology report, the expert detailed that, based upon DUI related case
studies involving each of these three drugs, all three of the drugs detected in
Appellant’s blood were found, in general, to have impaired a driver’s ability to
operate a motor vehicle. See Commonwealth’s Exhibit 5 at 2-3.
Appellant testified that he was released from prison on October 7, 2019,
and immediately began using buprenorphine. Id. at 66. Prior to his release
from prison, Appellant was not using the three drugs that were detected in his
blood on the day of the incident. Id. at 70. A report from Appellant’s
pharmacy confirms that Appellant filled prescriptions for, inter alia,
buprenorphine on October 8, 2019, carisoprodol on October 16, 2019, and
October 21, 2019, and clonazepam on October 8, 2019, and October 21, 2019.
See Defendant’s Exhibit B. As such, the incident occurred within two weeks
of Appellant starting to use these three drugs.
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, there is sufficient evidence to enable the trier-of-fact to find
a causal connection between Appellant’s use of the aforementioned drugs and
his inability to safely operate his motor vehicle, even in the absence of expert
testimony as to the issue of causation. It is uncontradicted that on the day of
the incident, Appellant ingested, and had present in his blood, the three
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aforementioned drugs. Some time after Appellant ingested these drugs, an
eyewitness observed Appellant operating his motor vehicle in an erratic and
unsafe manner, and Appellant admitted to erratic operation of his motor
vehicle. Upon engaging Appellant, Trooper Osbourne observed ordinary signs
that Appellant was under the influence of a drug or combination of drugs,
including her finding Appellant “slumped over the steering wheel asleep” while
his vehicle engine was running, and her observations of Appellant staggering
while he walked and appearing drowsy with drooping eyes, as well as
confused. Moreover, based upon her training, Trooper Osbourne testified that
Appellant exhibited multiple “clues of impairment” during the field sobriety
tests, including his inability to main a one-leg stand, use of his arms for
balance, and several missed steps in the heel-to-toe test. Appellant’s
drowsiness, drooping eyes, and inability to perform the field sobriety tests
properly, coupled with direct and undisputed observations of erratic driving,
are ordinary signs of impairment discernable by laypersons.6 Expert
testimony was, therefore, not required in the case sub judice to show a causal
connection between Appellant’s drug use and his impaired ability to safely
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6 Unlike Gause, supra, where the Commonwealth’s evidence of impairment
was body and eye tremors, the evidence in the case sub judice involves widely
understood indicia of impairment discernable by a layperson. See Gause,
164 A.3d at 539 (stating, “staggering, stumbling, glassy or bloodshot eyes,
and slurred speech” are “originally signs of [impairment] discernable by a
layperson”); see also Griffith, 32 A.3d at 1240 (finding that, a person’s
unsteadiness and inability to perform field sobriety tests are widely
understood indicia of impairment discernable by a layperson).
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operate his motor vehicle. Accordingly, Appellant’s issue as it relates to the
element of causation is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2023
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