J-S88043-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                  Appellee                :
                                          :
                     v.                   :
                                          :
STEPHEN ANDREW STRASSBURG,                :
                                          :
                  Appellant               :     No. 587 EDA 2016

           Appeal from the Judgment of Sentence September 3, 2015
                in the Court of Common Pleas of Bucks County
             Criminal Division, at No(s): CP-09-CR-0000929-2015

BEFORE:      OLSON, RANSOM, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:           FILED FEBRUARY 17, 2017

      Stephen Andrew Strassburg (Appellant) appeals from the judgment of

sentence entered September 3, 2015, after he was found guilty of, inter alia,

driving under the influence of a controlled substance (DUI), 3 rd offense.

Upon review, we affirm.

      The trial court set forth the relevant factual background of this case as

follows.

            On October 5, 2014, around 10:30 p.m., Officer Daniele
      Leporace was on routine patrol in a marked vehicle in the area of
      Elm Street and Evergreen Street of Warminster Township. He
      observed a vehicle traveling at a very slow rate of speed and due
      to the number of thefts from vehicles in area, he became
      suspicious and followed the vehicle at a discreet distance. Based
      on his own speedometer, he determined that the vehicle was
      traveling only about 10 to 15 miles an hour in an area where the
      speed limit was 25 miles per hour. Officer Leporace observed
      that the license plate light was not functioning. Based on the
      suspicious manner of driving in an area with numerous vehicular


*Retired Senior Judge assigned to the Superior Court.
J-S88043-16


      thefts from vehicles, and the fact that the license plate was not
      illuminated, Officer Leporace stopped the vehicle.          While
      speaking to [] Appellant, Officer Leporace noticed that []
      Appellant’s eyes were glassy, and his pupils were dilated and did
      not react to light in a way that he, as a former trained EMT,
      determined [to be] appropriate. These were indicators that []
      Appellant was possibly under the influence.

             Appellant admitted taking his prescription for [o]xycodone
      earlier that night. [] Appellant was asked to step out of the
      vehicle and the Officer instructed [] Appellant to perform three
      field sobriety tests, and [he] failed all three of them. After
      failing the tests, Appellant was transported to the hospital and
      submitted to a blood test. The results showed [] Appellant had
      435 nanograms per milliliter of [o]xycodone in his system.

            Dr. Thomas Brettell, who was qualified as an expert
      toxicologist, testified that the amount [] Appellant had in his
      blood stream was four times the prescribed medication. In Dr.
      Brettell’s opinion, that amount of [o]xycodone in someone’s
      system could kill a person and certainly impair someone’s
      driving.

             [On August 5, 2015, following a jury trial, Appellant was
      found guilty of, inter alia, the aforementioned crime and]
      sentencing was held on September 3, 2015. [] Appellant was
      sentenced on [count one, DUI, to] not less than two (2) years
      nor more than five (5) years’ incarceration at a state correctional
      institution, and to pay costs and fines.        On [count three,
      operating a vehicle with no rear lights,] he was ordered to pay
      costs plus statutory fines, and on [count four, driving while
      operating privileges are suspended or revoked,] he was
      sentenced to ninety (90) days [of] incarceration at a state
      correctional institution and a [$1,000] fine, which was to be
      served consecutively to [c]ount [o]ne.

Trial Court Opinion, 4/1/2016, at 1-3.

      Appellant filed a post-sentence motion on September 10, 2015,

requesting the trial court to modify his sentence.      Specifically Appellant

requested the trial court to reconsider the length of his sentence, namely the


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imposition of consecutive versus concurrent sentences, and requested the

opportunity to present “additional information and reflections” to the trial

court.        Motion     to   Modify/Reconsider   Sentence,   9/1/2015,        at   1

(unnumbered).          A hearing was held, and the motion was subsequently

denied. This timely-filed appeal followed, wherein Appellant presents the

following inartfully phrased issues for our review.1

         [1.] Whether the Commonwealth failed to meet its burden in
         that the driving behavior exhibited by Appellant did not prove
         beyond a reasonable doubt that Appellant was under the
         influence of drugs to such a degree that he was rendered
         incapable of safely driving and/or operating a motor vehicle.

         [2.] Whether the Commonwealth failed to meet its burden in
         that the expert testimony presented by Thomas A. Brettel,
         PH.D., did not prove beyond a reasonable doubt that Appellant
         was under the influence of drugs to such a degree that he was
         rendered incapable of safely driving and/or operating a motor
         vehicle.

         [3.] Whether the trial court abused its discretion by not
         considering factors already contemplated by the available
         sentencing guidelines and sentencing Appellant outside the
         standard range of the sentencing guidelines.

Appellant’s Brief 5-6 (unnecessary capitalization omitted).

         Appellant’s first two issues challenge the sufficiency of the evidence to

sustain his DUI conviction. Accordingly, we bear in mind the following.

         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


1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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     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
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence.         Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     [finder] 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.

     Further, in viewing the evidence in the light most favorable to
     the Commonwealth as the verdict winner, the court must give
     the prosecution the benefit of all reasonable inferences to be
     drawn from the evidence.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014) (internal

quotation marks and citations omitted).

     To be found guilty of driving under the influence of a controlled

substance, it must be proven that an individual is under the influence of a

controlled substance 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.S.C. § 3802(d)(2). “This section does not require proof of a

specific amount of a drug in the driver’s system. It requires only proof that

the driver was under the influence of a drug or combination of drugs to a

degree that the ability to drive is impaired.” Commonwealth v. Tarrach,

42 A.3d 342, 345 (Pa. Super. 2012)


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      Instantly, Appellant contends that the Commonwealth failed to prove

Appellant was under the influence of his prescribed medication, oxycodone,

to such a degree that it impaired his ability to drive safely. Appellant’s Brief

at 15. His argument is as follows:

      The only driving behavior observed was that Appellant was
      traveling slightly slower than the posted speed limit in a
      residential neighborhood. There was no other erratic driving
      behavior. There were no other cars on the road and, therefore,
      traffic was in no way inhibited. In fact, the officer observed
      Appellant complying with the traffic laws when he signaled
      before making a turn. The Commonwealth, therefore, did not
      produce any credible direct or circumstantial evidence of driving
      under the influence and, as such, Appellant’s conviction must be
      reversed.

Id.

      Notably, Appellant ignores the fact that Officer Leporace administered

three sobriety tests, all of which Appellant failed. N.T., 8/5/2015, at 15-22.

This alone is sufficient to find that Appellant was incapable of driving safely.

See Commonwealth v. Mobley, 14 A.3d 887, 890 (Pa. Super. 2011) (“The

Commonwealth may prove that a person is incapable of safe driving through

the failure of a field sobriety test.”) (citation omitted).       Furthermore,

Appellant ignores the undisputed testimony that Officer Leporace observed

Appellant’s “eyes to be dilated and glassy, and they were unreactive to [the

officer’s] flashlight.”   N.T., 8/5/2015, at 11.   Appellant appeared nervous,

and upon exiting the vehicle at the officer’s request, Appellant “lost his

balance and used his vehicle to push off it and to correct himself.” Id. at



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13-14. See Commonwealth v. Griffith, 32 A.3d 1231, 1240 (Pa. 2011)

(“An experienced police officer closely observed [defendant’s] behavior,

demeanor, unsteadiness, and inability to perform field sobriety tests, all of

which led him to request laboratory tests for the detection of controlled

substances in [defendant’s] blood.         [Defendant] admitted taking one

prescription medication in the morning of the day of her arrest. Two other

Schedule IV controlled substances, to wit, Valium and an active metabolite

thereof, were detected in her blood.     The Commonwealth’s evidence was

sufficient to establish, beyond a reasonable doubt, that [defendant] violated

subsection 3802(d)(2).”). See also Commonwealth v. Palmer, 751 A.2d

223, 228 (Pa. Super. 2000) (Affirming a defendant’s conviction of driving

under the influence of alcohol we noted that “a police officer who has

perceived a defendant’s appearance and acts is competent to express an

opinion as to the defendant’s state of intoxication and ability to safely drive

a vehicle.   Given the officer’s training, experience and observations, the

evidence submitted by the Commonwealth was sufficient to sustain

[defendant’s] DUI conviction.”) (citation omitted).

      Although we find the evidence presented was sufficient to sustain

Appellant’s conviction based upon Appellant’s failed field sobriety tests and

Officer Leporace’s observations, we briefly address Appellant’s second issue,

concerning Dr. Brettel’s testimony.    In his brief Appellant sets forth the

following argument:


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             Once again, in the present matter, the Commonwealth has
      failed to establish that Appellant was under the influence of his
      prescribed [o]xycodone to a degree that impaired his ability to
      safely drive. Appellant is not arguing that expert testimony was
      necessary to prove his guilt, as [] implied in the [trial court’s
      opinion].    On the contrary, Appellant is asserting that Dr.
      Brettel’s testimony about patients developing a tolerance to
      prescribed medication. The Commonwealth, therefore, did not
      produce any credible direct or circumstantial evidence of driving
      under the influence and, as such, Appellant’s conviction must be
      reversed.

Appellant’s Brief at 18. (italics in the original; citation omitted).

      First, we note Appellant’s “argument” is essentially non-existent, and

his failure adequately to develop his issue impedes our ability to address it.

Nonetheless, a review of the entirety of Appellant’s brief reveals that he is

attempting to argue that because Dr. Brettel acknowledged that individuals

can develop a tolerance to prescribed medication over time, Dr. Brettel’s

testimony was insufficient to establish that Appellant was incapable of safely

driving. Id. at 12.

      At trial, Dr. Brettel did acknowledge that an individual may develop a

tolerance to prescribed medications over time.        N.T., 8/5/2015, at 65-66.

However, Dr. Brettel also testified that the amount of oxycodone found in

Appellant’s blood was four times the therapeutic level, and in his opinion, a

person with that amount in his system, even if he had built up a tolerance,

would not be able to function normally.         Id. at 64-66.     Specifically, Dr.

Brettel testified that an individual with that level of oxycodone in his or her

blood “would not be able to drive safely. They should not be on the road, in


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my opinion. It would impair their ability to operate the motor vehicle safely,

on how to react, to stop in case, you know, of an oncoming car or something

like that. They would be very slow to react to that.” Id. at 66.

      Here, Appellant attempts to dispute the testimony of Dr. Brettel by

focusing solely on one part of his testimony. Such a position merely attacks

the credibility determinations of the fact-finder, not the sufficiency of the

evidence, and urges us to consider the evidence in the light most favorable

to him, rather than the verdict winner. No relief is due.

      Based upon the foregoing, we cannot agree with Appellant that the

evidence presented was so unreliable or speculative as to preclude a finding

of guilt. Accordingly, Appellant’s sufficiency of the evidence challenge fails.

      Appellant’s final issue challenges the discretionary aspects of his

sentence.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely [filed]; (2) whether Appellant preserved
         his issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under
         the sentencing code.... [I]f the appeal satisfies each of
         these four requirements, we will then proceed to decide
         the substantive merits of the case.




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Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

     The record reflects that Appellant timely filed a notice of appeal and a

motion for reconsideration of his sentence. However, Appellant has failed to

include in his brief a statement pursuant to Pa.R.A.P. 2119(f), 2 and the

Commonwealth has objected to this omission. Commonwealth’s Brief at 22.

Appellant, therefore, has waived this issue. See Commonwealth v. Roser,

914 A.2d 447, 457 (Pa. Super. 2006) (“A failure to include the Rule 2119(f)

statement does not automatically waive an appellant’s [discretionary aspects

of sentencing] argument; however, we are precluded from reaching the

merits of the claim when the Commonwealth lodges an objection to the

omission of the statement.”) (quoting Commonwealth v. Love, 896 A.2d

1276, 1287 (Pa. Super. 2006)).

     In the alternative, this Court could find Appellant’s issue waived for

failing to raise it during sentencing or in his post-sentence motion.   See

Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015) (holding

discretionary aspects claims not raised at sentencing or in a post-sentence



2
  Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (quoting
Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627 (Pa.
2002)) (“An appellant must, pursuant to Pennsylvania Rule of Appellate
Procedure 2119(f), articulate ‘the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.’”).


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motion are not subject to our review, even if raised in 1925(b) statement

and addressed in the trial court’s 1925(a) opinion).

      Accordingly, after a review of the briefs, record, and applicable case

law, we are not persuaded that any of Appellant’s issues warrants relief from

this Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 2/17/2017




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