Com. v. Duncan, H.

J-A04040-24

2024 PA Super 75

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

HEATHER A. DUNCAN :

:

Appellant : No. 1103 EDA 2023

Appeal from the Judgment of Sentence Entered April 10, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0007608-2021

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

OPINION BY COLINS, J.: FILED APRIL 17, 2024

Appellant, Heather A. Duncan, appeals the judgment of sentence

imposed by the Court of Common Pleas of Philadelphia County after she was

found guilty of driving while under the combined influence of alcohol and a

drug or a combination of drugs following a non-jury trial.1 She challenges the

sufficiency and weight of the evidence, the lower court’s grant of a

Commonwealth request to amend the charge during trial, and the trial court’s

admission of evidence concerning a cigarette that the police never confiscated

from the floor of her car. After careful review, we vacate Appellant’s

conviction.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S. § 3802(d)(3).

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Appellant’s case was held over for trial on a single charge for driving

under the influence (“DUI”) of alcohol/general impairment.2 Trial Disposition

and Dismissal Form, 8/30/21, 1; Bill of Information, printed 9/1/21, 1. On

June 28, 2022, she waived a jury and proceeded to be tried at a bifurcated

bench trial. N.T. 6/28/22, 4-5. The Commonwealth’s evidence consisted of

testimony from Police Officer Veronika Tueros, footage from a body camera

worn by Officer Tueros, and a copy of a First Judicial District secure court

summary for Appellant. The defense evidence included testimony from

Appellant and her doctor, and stipulated testimony from Appellant’s father.3

At 4:45 p.m. on May 20, 2021, Officer Tueros was on bike patrol duty

with two partners in the 700 block of East Clearfield Street in Philadelphia

when she heard yelling and honking at a car that was stopped at the

intersection with Ridge Street with cars behind it as the traffic signal was

green. N.T. 11/2/22, 35-36. She saw Appellant gripping the steering wheel

while “having a blank stare straight forward.” Id. at 36. After initially

signaling with her hand to direct Appellant to move forward, Officer Tueros

directed Appellant to put the car in park, turn it off, and exit the car. Id. at

37-38. Appellant was unable to comply with multiple commands to unlock the

car. Id. at 38-39. Another officer, Officer Lopez, reached over a window and

unlocked the car. Id. at 39.

____________________________________________

2 75 Pa.C.S. § 3802(a)(1).

3 We note that the defense agreed to present its case prior to the

Commonwealth’s case-in-chief. N.T. 6/28/22, 6.

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Officer Tueros asked Appellant to come out of the car, but she remained

still with a confused look. N.T. 11/2/22, 40. Officer Tueros saw that

Appellant’s eyes were red and “went from a wide eyes [sic] to squinty eyes.”

Id. at 43. The officers then helped her out of the car. Id. at 39-41. On the

floor of the car, Officer Tueros saw a cigarette of which “half to the end of [it]

was wet:”

Commonwealth Exhibit C-1, Officer Tueros’s Body Worn Camera Footage,

5:06 (File “700_E_CLEARFIELD_ST_-_DUI-2”); N.T. 11/2/22, 42, 45-46, 53-

54. Appellant had slurred speech when the officers were asking her for her

name. Id. at 43. The officers were able to identify her after they retrieved

her identification card from a purse in the car. Id. at 44.

When the Commonwealth asked Officer Tueros at trial about the

significance of the cigarette being wet, Appellant’s counsel objected on the

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basis of spoliation because the police officers did not preserve the cigarette.

N.T. 11/2/22, 45 (Defense counsel: “They did not preserve the cigerrretee

[sic] they destroyed it … This is what you call spoliation.”). The court

permitted the officer to testify, over defense objections that the wetness of

the cigarette was indicative of the presence of PCP, which the officer based on

her experiences with drug arrests in the Kensington area of Philadelphia which

the officer noted was an area with “very high illegal narcotic sales.” Id. at

47-49. The court rejected defense objections to the evidence as speculative

and irrelevant, and rejected a related mistrial request:

Q. So in your experience, officer, have you ever encountered in

your routine patrol or active duty, cigerettes [sic] in which a

portion of the cigerrette [sic] is wet?

[DEFENSE COUNSEL]: Objection, pure speculation.

THE COURT: He hasn’t asked her to speculate. He just asked.

Overruled. Go ahead.

[DEFENSE COUNSEL]: And irrelevant.

THE COURT: Overruled.

Q. So, being on the force, have you encountered cigerretes [sic]

in which portions of the ciggerette [sic] were wet?

A. Yes.

Q. And what, if anything, what do you make of ciggerettes [sic]

that are wet?

A. They are dangerous. Well I concluded that it is PCP --

[DEFENSE COUNSEL]: Objection. Move for a mistrial.

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THE COURT: Well, there is no ground for that. It’s overruled.

Continue.

THE WITNESS: I immediately concluded that it’s alleged PCP

based on what I have seen during patrol, what I have seen during

arrests.

[DEFENSE COUNSEL]: Note my objection.

Id. at 48-49; see also id. at 71 (additional motion to exclude any reference

to the cigarette following Officer Tueros’ testimony). Officer Tueros described

the non-filtered part of the cigarette as brown and noted that she separately

found a smoking “vape” in the car. Id. at 50, 66.

No field sobriety tests were conducted at the scene prior to the police

taking Appellant into custody. N.T. 11/2/22, 55-56. Officer Tueros testified

that she did not retrieve the observed “wet” cigarette out of concern for her

safety. Id. at 57 (“I did not for my safety.”); see also id. at 71 (“Due to

safety reasons. I was told not to touch PCP, alledged [sic].”). For the same

reason, she confirmed that her fellow officers at the scene did not preserve

the cigarette as evidence. Id. (“Q. Did you have one of your colleagues

retrieve it or get a jar or a glove and preserve the evidence? A. They did not,

for their safety.”). Officer Tueros testified that she moved Appellant’s car to

a parking spot on the street and left the observed cigarette “in place.” Id. at

60. The Commonwealth’s evidence did not address any blood or chemical

testing in connection with Appellant’s arrest.

Appellant testified that she had a “[a] complete thyroidectomy” six days

before her arrest. N.T. 6/28/22, 7-8. She also alleged that on the day before

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the arrest she “was having side effects from the surgery” which included an

inability to move her legs, a lack of feeling in her legs, and “some tingling in

[her] body.” Id. at 9. Afterwards, she went to have blood drawn at a division

of Pennsylvania Hospital. Id. at 10. On the day of the arrest, Appellant went

to Pennsylvania Hospital to see an orthopedist and receive a COVID-19

vaccination; she produced documentation reflecting that she was parked at

the hospital from 10:51 a.m. to 12:55 p.m., instructions concerning the

vaccine, and a vaccination card. Id. at 12-13.

Appellant testified that, after leaving the hospital garage, she went to a

birthday lunch for her sister at a restaurant in the Secane area of Delaware

County. N.T. 6/28/22, 13-14. She admitted to having “about half of one”

bottle of beer at that party. Id. at 15. She also alleged that she had been

put on a calcium regimen at that time because her medical testing proved that

she “had pretty severe hypocalcemia.” Id. at 16. She recalled that she left

the restaurant “somewhere around 3:45” p.m. Id. at 18. From there,

Appellant drove to a dollar store on Allegheny Avenue in the Port Richmond

section of Philadelphia. Id. at 19. She also testified about wanting to retrieve

tools that she had lent to a friend that lived “a block away on Silver Street”

before she intended to return to her home in South Philadelphia. Id. at 19-

20. She recalled driving to the area of her arrest on the way from the visit to

the dollar store to retrieve her tools. Id. at 20, 36. She denied drinking any

alcohol, other than what she drank at her sister’s birthday lunch, and denied

taking any drugs other than prescription drugs on the day at issue (as to her

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prescriptions, she referred to her “thyroid medication” and “acid reflux pills”

and her doctor recalled prescribing her calcium and Vitamin D supplements).

Id. at 20-21, 23; N.T. 11/2/22, 20.

As to the police encounter, Appellant recalled “coming to the red light

there,” feeling “really funny … like a crazy feeling in the pit of [her] stomach,”

and experiencing her face tingling. N.T. 6/28/22, 21. She agreed that she

remembered the officer telling her to pull her car over and put it in park, but

she asserted that her next memory after that was her being in the back of a

police wagon. Id. She also agreed that she had a vape on her person and

used it to smoke nicotine. Id. at 22-23 (“I mean I wasn’t supposed to be

because I wasn’t supposed to be smoking at all, but I did have a vape on me

and lightly smoking it because of the surgical procedure.”).

Counsel stipulated that Appellant’s father would testify that: he was at

the birthday lunch with Appellant; Appellant seemed “not normal” then; she

“ate something, not much;” she had “the affects of her operation, the

bandages;” he observed her order a bottle of beer, “of which she drank some

of it;” she left the restaurant to go back to Philadelphia at around 3:45 p.m.;

and that “although she was acting oddly, [Appellant] wasn’t under the

influence of anything [and] wasn’t drinking.” N.T. 6/28/22, 37-38.

Appellant also presented testimony from an endocrinologist, Dr.

Caroline Kim, who had treated her before and after her thyroidectomy. N.T.

11/2/22, 12, 16, 19-20. Dr. Kim testified that “there [was] an issue of low

calcium after that operation” and that Appellant developed hypocalcemia after

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the surgery. Id. at 18-19. She noted that the more common symptoms of

hypocalcemia “would be tingling around [a person’s] fingers, around their

mouth, some people have cramping in their legs, [and] severe hypocalcemi[a]

can certainly affect their vascular system.” Id. at 19.

After the Commonwealth finished presenting its case-in-chief, defense

counsel renewed his objection as to the references to the cigarette in

Appellant’s car and the suggestion that “it might have some sort of narcotic

or PCP or something like that on it” because the cigarette was never preserved

and thus could not be tested. N.T. 11/2/22, 77-80. The court rejected the

objection due to a lack of showing that bad faith resulted in the failure to

preserve the cigarette. Id. at 80 (“THE COURT: Okay. So on the spoliation.

Although I am not convinced that this makes any difference because we have

a video of the alleged PCP cigerrete [sic], but there is no evidence of bad faith

by the police because the car was parked legally.”).

During the discussion of the defense objection to the wet cigarette

evidence, the trial court asked the Commonwealth for its theory for the

prosecution and the Commonwealth proceeded to make a motion to amend

the charge to add a separate count of DUI under 75 Pa.C.S. § 3802(d)(3).

N.T. 11/2/22, 82-83, 88. Appellant’s counsel objected. Id. at 83, 88 (“I

would object to an amendment at this, at this late date. … This is way too late

to amend without proper notice. We tried this case.”). The court granted the

amendment request because it found no prejudice to the defense. Id. at 89

(THE COURT: … I find that there is no prejudice to the defense, because I

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mean, this conforms with the evidence. It is consistent with the evidence that

the defense put on. And the issues in this case were kind of well telegraphed

to both sides.”).4 Immediately after granting the amendment, the court

announced its verdict, convicting Appellant of the amended misdemeanor

charge under 75 Pa.C.S. § 3802(d)(3), and finding her not guilty of the felony

general impairment charge under 75 Pa.C.S. § 3802(a)(1). N.T. 11/2/22, 89;

Trial Disposition and Dismissal Form, 11/2/22, 1.

Appellant made a post-verdict motion for extraordinary relief asserting

that the trial court violated her state and federal due process rights by allowing

the Commonwealth to amend the bill of information to include the charge

under Section 3802(d)(3). Motion for Extraordinary Relief Brief, 2/24/23, 1-

13. In response to Appellant’s arguments that the amendment caused

prejudice by materially changing the crime and facts at issue and affecting the

defense’s strategy, the trial court denied the motion as follows:

____________________________________________

4 The reference to a controlled substance issue being “well telegraphed”

appeared to be a reference to the fact that the prosecutor at the end of the

first day of the bifurcated trial (who was a different attorney from the

prosecutor who resumed the trial on a subsequent date) stated an intent to

prosecute based on a theory of PCP use. See N.T. 6/28/22, 41 (“The

Commonwealth’s theory of the case is that the defendant was driving under

the influence of PCP.”); id. at 46 (“The theory would be that the defendant

was under the influence of PCP given the cigarette, which the officer would

likely testify appeared wet at the end. And based on her training and

experience, what that experience is, is PCP has a very specific smell.”).

Appellant’s counsel responded that he would object to the testimony about

the cigarette due to spoliation. Id. (“I would object to that because if you

spoil the evidence, you can’t use it.”).

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These arguments lack merit. First, [Appellant] suffered no

prejudice. [Appellant’s] counsel knew about the wet-tipped

cigarette before trial. At the preliminary hearing, Officer Tueros

testified she saw a cigarette that had been dipped in what looked

like PCP connected to a plastic pipe in [Appellant’s] car. Defense

counsel objected on the ground that Officer Tueros was

speculating about the PCP, and the objection was sustained.

Officer Tueros then testified she believed the pipe was used for

narcotics. Defense counsel objected again, and the objection was

sustained. The Commonwealth offered no other evidence of

impairment by drug or alcohol at the [p]reliminary [h]earing.

Defense counsel of course knew the Municipal Court’s rulings on

the scope of the arresting officer’s testimony would not bind the

Court of Common Pleas. Defense counsel also knew from the

[p]reliminary hearing that the arresting officer would testify the

discolored and moist cigarette tip indicated the presence of PCP.

Armed with notice of the government’s theory of prosecution from

the preliminary hearing, defense counsel at trial objected to

evidence of the wet-tipped cigarette. He sought to exclude

evidence both during Officer Tueros’s direct examination and at

the close of the Commonwealth’s case-in-chief. I overruled the

objections. Defense counsel also argued in closing that the

evidence of impairment by PCP was insufficient. In short, defense

counsel knew the Commonwealth would rely on the wet-tipped

cigarette at trial and sought to downplay its weight. The court

infers from these circumstances that [Appellant] did not call an

expert for strategic reasons and not because the defense was

blindsided. The timing of the amendment did not prejudice the

defense.

That this was a bench trial, and not a jury trial, also informs the

issue. The change to the elements of proof was minor. The court

could adapt as the finder of fact without confusion.

Finally, [Appellant’s] argument that the court improperly worked

with the [Assistant District Attorney] to amend the bill to conform

to the evidence obfuscates the issue. The question is prejudice.

For the reasons set forth above, at this bench trial, there was

none.

Order, 3/24/23, 6-7 (caselaw and record citations omitted).

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On April 10, 2023, the court sentenced Appellant to a mandatory-

minimum imprisonment term of one to two years, to be followed by three

years’ probation. N.T. 4/10/23, 3-5, 20; Sentencing Order, 4/10/23, 1; see

75 Pa.C.S. § 3804(c)(3)(i) (requiring an individual who violates Section

3802(d) to “undergo imprisonment of not less than one year” for a third or

subsequent DUI offense). Appellant timely filed a post-sentence motion,

challenging the sufficiency and weight of the evidence, asserting that the trial

court erred by not striking the testimony about the cigarette on the floor of

her car, alleging that the trial court violated her due process rights by allowing

the amendment of the bill of information during the trial, and asking for a

grant of bail pending appeal. Post-Sentence Motion, 4/18/23, 6-11. After the

denial of the motion, Appellant timely filed a notice of appeal and a court-

ordered concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Order Denying Post-Sentence Motion, 4/24/23, 1; Notice

of Appeal, 4/26/23, 1-2; Rule 1925(a) Order, 4/28/23, 1; Rule 1925(b)

Statement, 5/2/23, 1-11.

Appellant presents the following questions for our review:5

1) Was the conviction of driving under the influence of a

combination of alcohol and drugs (75 [Pa.C.S. §

3802(d)(3)]) not supported by sufficient evidence since the

evidence only showed she drank a half bottle of beer and

there was no evidence to support the police officer’s

speculation that there was PCP due to an alleged brownish

color on a cigarette when the cigarette was never tested and

the police never collected the cigarette for evidence but left

____________________________________________

5 We have reordered Appellant’s issues for ease of disposition.

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it at the scene? Was the verdict based on pure speculation

and conjecture? Did the evidence show that [Appellant] had

not used any drugs that day but was suffering from

hypoglycemia caused by low calcium levels after her thyroid

operation?

2) Did [the trial court] err and violate due process under the

Fourteenth Amendment of the United States Constitution

and related provisions of the Pennsylvania Constitution and

Pennsylvania Rule[ ] of Criminal Procedure [ ] 564, by

allowing the Commonwealth to amend the [b]ill of

[i]nformation charging 75 [Pa.C.S. §] 3802(a)(1) of general

impairment with alcohol to add 75 [Pa.C.S. §] 3802(d)(3)

involving unsafe driving involving a combination of alcohol

and drugs after all the evidence had been presented and

[trial counsel] had made his closing argument, thereby

unfairly and severely prejudicing [Appellant] by the

extremely late and untimely amendment? Was this

extremely late amendment highly prejudicial to [Appellant]

since [trial counsel] tried the case based only on the charge

of alcohol impairment which was the only charge at issue

until the late amendment after [trial counsel’s] closing

speech?

3) Was the conviction of driving under the influence of alcohol

and drugs (75 [Pa.C.S. § 3802(d)(3)]) against the weight of

the evidence? Should this conviction shock the conscience

of this Honorable Court since there was no evidence of any

drugs, only evidence of a half bottle of beer and the charge

of 75 [Pa.C.S. § 3802(d)(3)] was only added after all

evidence was presented and after the defense gave their

closing speech? Was the verdict based on speculation and

conjecture?

4) Did [the trial court] err in not striking the testimony by the

police officer about the cigarette found on the car floor and

the speculation that it could be PCP due to an alleged

brownish color since the police and the Commonwealth

never tested the cigarette and in fact, never collected the

cigarette or placed it into evidence but instead, left the

cigarette at the scene to be destroyed? As a result, was the

police officer’s testimony about a PCP cigarette pure

conjecture and speculation? Did the Commonwealth err in

destroying the evidence of the cigarette and therefore,

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should the Commonwealth be prohibited from testifying

about the untested and destroyed cigarette?

Appellant’s Brief at 8-11 (omitting repeated summaries of the verdicts).

First, we address Appellant’s sufficiency issue. She argues that the

evidence was insufficient because there was no evidence of “any drug use,”

any blood or alcohol testing of her, and any sobriety testing of her. Appellant’s

Brief at 61-68. She attributes her intoxicated state to “a hypoglycemia type

of situation” due to a lack of calcium in the week following a thyroid surgery

amid her receipt of a COVID-19 vaccine shot on the day of her DUI arrest.

Id. at 63-64. As for the observed cigarette on the car floor, she repeats her

arguments from below that the conclusion that the cigarette was indicative of

PCP use was speculative and based on conjecture where the police never

preserved the cigarette or had it tested. Id. at 65-66; see also id. at 67

(“there is no evidence of drugs involved in this case other than naked

conjecture and speculation.”).

The Commonwealth adopts portions of the trial court’s opinion to

demonstrate that there was “significant corroborative evidence that

[Appellant] was high on PCP at the time of the arrest” and that Appellant’s

“symptoms” at the time of the arrest were not likely to be attributed to a

calcium deficiency as Appellant suggests. Appellee’s Brief at 12-13. As for

the evidence of PCP intoxication, the Commonwealth reproduces the following

portion of the trial court’s opinion:

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Officer Tueros saw a wet-tipped cigarette in [Appellant]’s car after

she pulled [Appellant] from the SUV at the green light. PCP

abusers inhale PCP by smoking cigarettes dipped in PCP fluid.

These explanations for [Appellant]’s impairment are consistent

with the location of her arrest in Kensington, a high [drug] traffic

area. She had been at a birthday party in Delaware County where

she drank beer. She lived in South Philadelphia. She drove past

her home after the party to get to Kensington, a high drug traffic

area.

[Appellant] offered a non-credible and uncorroborated alibi. She

testified that she went to Kensington to retrieve tools from a

friend. She did not name her friend or give the location where

they met. This self-serving testimony did not ring true.

…

The expert testimony from Dr. Kim also did not mesh with the

facts. [Appellant] had successfully driven to her medical

appointment earlier in the day. She then successfully drove to a

birthday party in Delaware County. She would not have been able

to make these stops if hypocalcemia had impaired her driving.

She only became impaired in Kensington, a high drug traffic area.

Common sense dictates [Appellant’s] impairment stemmed from

a combination of alcohol from the party and a controlled substance

she obtained in Kensington.

Appellee’s Brief at 12, citing Trial Court’s Opinion, 6/30/23, 5-6 (record

citations omitted; reformatted with paragraph breaks as in the trial court’s

opinion).

Our standard of review for a challenge to the sufficiency is well-settled:

We must determine whether the evidence at trial, and all

reasonable inferences drawn thereform, when viewed in a light

most favorable to the Commonwealth as verdict winner, support

the conviction beyond a reasonable doubt. Where there is

sufficient evidence to enable the trier of fact to find every element

of the crime has been established beyond a reasonable doubt, the

sufficient of the evidence claim must fail.

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The evidence established at trial need not preclude every

possibility of innocence and the fact-finder is free to believe all,

part, or none of the evidence presented. It is not within the

province of this Court to re-weigh the evidence and substitute our

judgment for that of the fact-finder. The Commonwealth’s burden

may be met by wholly circumstantial evidence and any doubt

about the defendant’s guilt is to be resolved by the fact finder

unless it is so weak and inconclusive that, as a matter of law, no

probability of fact can be drawn from the combined circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889-90 (Pa. Super. 2011),

quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. 2010)

(internal quotations and citations omitted). Moreover, “[i]it is well recognized

… that a criminal conviction cannot be based upon mere speculation and

conjecture.” Commonwealth v. Jarman, 601 A.2d 1229, 1231 (Pa. 1992).

The legal question that needs to be resolved for the instant claim is

whether the evidence was sufficient to support that Appellant’s impairment

was caused by “the combined influence of alcohol and a drug or [a]

combination of drugs.” 75 Pa.C.S. § 3802(d)(3). Here, the parties are not

contesting Appellant’s state of impairment, that she had at least some alcohol

on the day in question, or that she was incapable of safely driving. Instead,

they contest what the evidence proved was the cause of her impairment and

whether controlled substance use contributed to it. Appellant relies on her

defense evidence to maintain that she was impaired because of a

hypoglycemic medical event. Appellant’s Brief at 64. The Commonwealth,

relying on the trial court’s analysis, asserts that the evidence was sufficient

“[b]ecause there was evidence that [Appellant] consumed alcohol and that

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she was high on PCP.” Appellee’s Brief at 10. Officer Tueros’s observation of

the unrecovered cigarette in the entryway of Appellant’s car and Appellant’s

presence in an area known for drug trafficking are the only evidence addressed

as proof of Appellant’s use of a drug that contributed to her impairment.

The relevant provision of the DUI statute that Appellant was convicted

of violating provides as follows:

An individual may not drive, operate or be in actual physical

control of the movement of a vehicle under any of the following

circumstances: … The individual is under the combined influence

of alcohol and 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. § 3802(d)(3). To sustain the DUI conviction under subsection

(d)(3), the Commonwealth was required to prove beyond a reasonable doubt

that: (1) Appellant was impaired; (2) Appellant was incapable of safely

driving; and (3) Appellant’s impairment was caused by the combined influence

of alcohol and a drug or combination of drugs. See Commonwealth v.

Graham, 81 A.3d 137, 146 n.6 (Pa. Super. 2013).

The text of subsection (d)(3) does not require the blood testing of a

defendant to establish the causation of impairment element. See

Commonwealth v. DiPanfilo, 993 A.2d 1262, 1268 n.6 (Pa. Super. 2010)

(noting subsections (d)(2) and (d)(3) of Section 3802 “contain no language

requiring that impairment be established through blood tests”). Moreover,

with respect to the statute’s (d)(2) subsection involving impairment due to “a

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drug or combination of drugs,” our Supreme Court has held that expert

testimony is not mandatory in all prosecutions for driving under the influence

of a drug to prove that the amount of a controlled substance found in a

defendant’s blood or urine caused driving impairment. Commonwealth v.

Griffith, 32 A.3d 1231, 1238 (Pa. 2011); see also Graham, 81 A.3d at 147

(applying Griffith in a case addressing the sufficiency of the evidence for a

DUI conviction under subsection (d)(3)).

While blood testing of Appellant was not required pursuant to Section

3802(d)(3), the Commonwealth still needed to prove beyond a reasonable

doubt that Appellant was driving while under the influence of a drug that

contributed to the impairment of her ability to safely drive. In the absence of

any apparent request for blood testing of Appellant or any admission to her

ingestion of a drug that would have contributed to her impairment, the

Commonwealth could have proven the causation of the impairment by

circumstantial evidence. See Commonwealth v. Olsen, 82 A.3d 1041, 1046

(Pa. Super. 2013). In this instance, the primary basis for the impairment

causation was proffered to be the cigarette seen in the doorway of Appellant’s

car. Viewing the evidence in the light most favorable to the Commonwealth,

we are unable to conclude that the combined observation of the cigarette in

the doorway of Appellant’s car and Appellant’s presence in an area known for

drug trafficking was sufficient evidence that Appellant’s impairment was

caused at least in part by a single drug.

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The observed cigarette was never recovered and thus it was never

subjected to testing that could have shown whether it contained any drugs

that could have caused Appellant’s impairment. Officer Tueros described in

her testimony that “half to the end of the cigarette was wet.” N.T. 11/2/22,

42; see also id. at 45-46. She testified that she concluded the cigarette was

alleged PCP “based on what [she had] seen during patrol, what [she had] seen

during arrests.” Id. at 49. She further indicated that the tobacco portion of

the cigarette was the half that was wet, it was unlit, and that the “white paper”

half was brown. Id. at 49-50. Despite these assertions, the Commonwealth

never elicited testimony from the officer providing for her reasoning for how

she concluded that the cigarette contained PCP or why any wetness or coloring

of the cigarette was indicative of the presence of PCP or any drug for that

matter. The Commonwealth also never elicited any testimony from Officer

Tueros to show whether any of the signs of Appellant’s impairment were

indicative of drug use. On top of everything else, there was no proffer that

Officer Tueros was an expert in the field of drug recognition.6

The Commonwealth is entitled to all reasonable inferences from the

evidence presented and we are to review the evidence in the light most

favorable to the Commonwealth as the verdict winner, but it strains credulity

to conclude that a factfinder could accept that a non-expert can detect PCP in

____________________________________________

6 The officer acknowledged that she did not conduct any field sobriety test on

Appellant and that she was “not trained for that.” N.T. 11/2/22, 55.

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a cigarette merely by observing its color and wetness. This Court, on the

other hand, has held that evidence of an odor from a controlled substance is

independent evidence of impairment that does not require expert testimony.

See Commonwealth v. Gause, 164 A.3d 532, 538 (Pa. Super. 2017) (en

banc) (holding evidence insufficient for a subsection 3802(d)(2) controlled

substance DUI where there was no evidence of recent marijuana ingestion

and, inter alia, there was no evidence of an odor of marijuana emanating from

Gause’s person or his vehicle).

In the context of drug possession cases, it is well settled that “the

existence of narcotic drugs does not have to be proved by chemical analysis

and may be proved either by direct or circumstantial evidence.”

Commonwealth v. Williams, 428 A.2d 165, 167 (Pa. Super. 1981). Indeed,

this Court has explained that:

the identity of illegal narcotic substances may be established by

circumstantial evidence alone, without any chemical analysis of

the seized contraband. Such a policy indicates that the courts will

not, in cases involving the sale or use of illegal drugs, constrict

their fact-finding function to the identity of drugs to a strict

scientific analysis, but will rather permit the use of common sense

and reasonable inferences in the determination of the identity of

such substances.

Commonwealth v. Minott, 577 A.2d 928, 932 (Pa. Super. 1990) (citations

omitted).

Testimony concerning an odor from the observed cigarette could have

circumstantially proved the existence of PCP. Compare Commonwealth v.

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Galette, 2020 WL 7398732, *6 (Pa. Super., filed Dec. 17, 2020) (finding

sufficient evidence for subsection 3802(d)(2) DUI based on signs of

impairment including glassy eyes, a “thousand-yard stare,” slow and garbled

speech, and where a police officer smelled a strong odor emanating from

Gallette’s person which the officer, upon receiving subsequent training,

identified as PCP) (cited for its persuasive value pursuant to Pa.R.A.P.

126(b)(2)); see also Commonwealth v. Hairston, 2021 WL 1234790, *3-

4 (Pa. Super., filed Mar. 31, 2021) (evidence sufficient for possession of PCP

where Hairston engaged in a hand-to-hand exchange of cigarettes for cash

with another man, two PCP cigarettes were recovered from the buyer, and the

defendant threw a glass of liquid during his flight, and the arresting officer

testified that he could smell the distinct odor of PCP emanating from the

broken glass) (cited for its persuasive value pursuant to Pa.R.A.P. 126(b)(2));

cf. DiPanfilo, 993 A.2d at 1267 n.5 (“if a police officer stopped a driver who

was driving erratically, and the driver then rolled down his window and greeted

the officer through a cloud of marijuana smoke, showing the typical signs of

heavy marijuana use, it would be difficult to imagine that expert testimony

would be necessary to establish the link between the erratic driving and the

driver’s marijuana use.”).

Here, the Commonwealth has not directed us to any testimony of an

odor informing Officer Tueros’s conclusion as to the presence of PCP and we

cannot independently uncover any trial testimony concerning any odor

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emanating from the observed cigarette.7 To the extent that the officer’s

conclusions were only based on the observation of the color and perceived

wetness of the cigarette, the element of the DUI conviction which required

Appellant’s impairment to be caused at least in part by a drug was based only

on conjecture and speculation. In the absence of any additional factors or

explanation in the trial testimony as to Officer Tueros’s reasoning for her

conclusion that the observed cigarette contained PCP, we are unable to find

that there was sufficient evidence that Appellant’s impairment was caused in

part by PCP or any drug. The evidence, even viewed in the light most

favorable to the Commonwealth, did not sustain the DUI conviction under

subsection 3802(d)(3). See Commonwealth v. Kelley, 58 A.2d 375, 377

(Pa. Super. 1948) (“Conjecture is not a substitute for evidence and a

conviction based thereon must be set aside.”).

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7 In fairness to the Commonwealth, we must examine all evidence, regardless

of admissibility, when determining sufficiency of the evidence claims because

sufficiency of evidence is not assessed upon a diminished record.

Commonwealth v. Sanford, 863 A.2d 428, 431-32 (Pa. 2004). In this case,

the defense marked preliminary hearing notes of testimony for identification

as Exhibit D-6 but never explicitly moved them into the evidentiary record.

N.T. 6/28/22, 43 (marking of Exhibit D-6). Because those notes of testimony

were never moved into the record, we cannot rely on their contents for

purposes of our sufficiency review. See Commonwealth v. Jones, 271 A.3d

452, 456 (Pa. Super. 2021) (noting that “exhibits that are merely marked for

identification and by the offering party do not constitute evidence on which a

finder of fact can rely,” but holding, on the other hand, that a video recording

marked for identification and played to the trial finder of fact is admitted into

evidence even if no formal motion is made for its admission).

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We further note that the trial court’s reliance – and the Commonwealth’s

indirect reliance – on Appellant’s presence in a “high drug trafficking area” as

a substitute for the total lack of proof that Appellant was under the influence

of a drug at the time of her impairment is immaterial for purposes of our

sufficiency review. The suggestion that the observed cigarette must have

contained PCP based only on Appellant’s presence in an area known for drug

trafficking emphasizes the degree to which the verdict here was based purely

on conjecture. Accordingly, we vacate Appellant’s conviction for driving under

the influence of alcohol and a drug or combination of drugs.8

Conviction vacated. Judgment of sentence vacated. Jurisdiction

relinquished.

Judge Stabile joins the Opinion.

Judge McLaughlin files a Dissenting Opinion.

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8 In light of our disposition, we decline to address Appellant’s remaining

challenges to the grant of the Commonwealth’s request to amend the DUI

charge, the weight of the evidence, and the rejection of the evidentiary

admission objections concerning the cigarette found on the floor of Appellant’s

car.

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Date: 4/17/2024

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