Com. v. Panick, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

:

:

SUSAN A. PANICK :

:

Appellant : No. 1149 EDA 2019

Appeal from the Judgment of Sentence March 25, 2019

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0001361-2018

BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY OTT, J.: FILED NOVEMBER 08, 2019

Susan A. Panick appeals from judgment of sentence imposed March 25,

2019, in the Lehigh County Court of Common Pleas. The trial court sentenced

Panick to a term of six months’ intermediate punishment, with 30 days’ house

arrest on electronic monitoring, following her non-jury conviction of driving

under the influence (“DUI”) (controlled substances), careless driving, and

moving stopped or parked vehicle.1 On appeal, she argues the evidence was

insufficient to sustain her convictions of DUI and careless driving, and the trial

court demonstrated bias against her such that her due process rights were

violated. For the reasons below, we affirm.

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1 See 75 Pa.C.S. §§ 3802(d)(2), 3714(a), and 3333, respectively.

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The facts underlying Panick’s conviction as presented during her non-

jury trial were summarized by the trial court as follows:

[O]n December 25, 2017, at approximately 7:00 P.M., Constance

Harding was in her family room located at 8033 Glenwood Court,

New Tripoli, Lehigh County, Pennsylvania, when she observed a

car backing up onto her back lawn. As it was dark and snowy

outside, Ms. Harding was able to see the headlights from the

vehicle streaming into her family room. Consequently, she and

her husband went outside and found a vehicle stopped in their

backyard. When they arrived on scene, another neighbor,

Jason, and his wife were already there. The neighbors had been

[2]

driving home when they observed the subject vehicle backed up

onto the Harding[s’] bushes and possibly stuck on the Harding[s’]

lawn.

Mrs. Harding approached the vehicle and knocked on the window.

The driver, later identified as the Defendant, Susan Panick,

appeared to be confused, bewildered, and disoriented. [Panick]

indicated that she was alright, but that she had Chinese food in

the back seat for a party to which she was heading. Ms. Harding

and the neighbor asked if [Panick] could place her vehicle in park.

In response, [Panick] went in reverse and backed up further into

a ditch. At this point, [Panick’s] vehicle was approximately 30

[feet] into the Harding[s’] property, with the right tire in a ditch.

Eventually [Panick] placed her vehicle in park. Ms. Harding helped

[Panick] out of the vehicle, as she appeared to be unsteady. At

that time, the neighbor was able to utilize tow ropes and remove

the vehicle from the Harding[s’] lawn.

While the neighbor was towing the vehicle out of the ditch, Ms.

Harding spoke with [Panick]. [Panick] related that she was on her

way to a friend’s house on George Road and that she was traveling

from about five (5) minutes away. However, [Panick] stated that

she was coming from Hellertown, which is more than thirty (30)

minutes away. During the conversation, Ms. Harding noted that

[Panick’s] speech was slurred and she seemed to be confused.

[Panick] requested that they do not involve the police. However,

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2 Jason’s last name is not provided in the notes of testimony.

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Ms. Harding was concerned that [Panick] was not capable of

driving her vehicle safely, so she called the police.

At 7:36 P.M. that evening, Trooper Ahmad Norman of the

Pennsylvania State Police, Fogelsville Barrack, a drug recognition

expert, arrived on scene in the area of George and Carpet Roads,

New Tripoli, in full uniform and in a marked police vehicle for a

single car collision. He observed a vehicle in the opposite lane of

travel with its lights on, straddling the right fog line. After

speaking with Ms. Harding and the neighbors, Trooper Norman

approached the subject vehicle to speak with [Panick]. Upon his

approach, Trooper Norman requested that [Panick] activate the

emergency brake on the vehicle. Despite it being her vehicle,

[Panick] was not able to readily locate the emergency brake to

employ. During the conversation between Trooper Norman and

[Panick], Trooper Norman found [Panick] to appear to be frantic,

excited, disoriented, and incoherent at times. Also, Trooper

Norman detected the odor of alcohol about the vehicle and her

person. [Panick’s] eyes were bloodshot and glassy, and [her]

speech was slow. In addition, [Panick] constantly spoke over

Trooper Norman, and her responses were not always responsive

to the question posed.

Trooper Norman requested that [Panick] produce the appropriate

documents, including the registration and insurance for the

vehicle. [Panick] was fumbling through her paperwork and

appeared to be confused. [Panick] explained that she was on her

way to a party when she got lost. Her GPS had indicated that she

had arrived at her destination, but there was no driveway.

[Panick] expressed concern over missing the party and that the

Chinese food was getting cold. Trooper Norman inquired if

[Panick] had consumed alcohol earlier in the evening. [Panick]

denied having drunk anything that day, but admitted that she took

cough medicine as a sleep aid, anti-anxiety medicine, and pain

medication earlier in the day. Trooper Norman noted there was

an open bottle of prescription pills on the front seat. When

questioned about same, [Panick] advised the Trooper that they

were pain medication pills.

Trooper Norman requested that [Panick] exit the vehicle to

perform field sobriety tests. Initially, [Panick] refused, but then

she agreed and exited the vehicle. [Panick] did not perform well

on the field sobriety test. She interrupted the Trooper numerous

times, and would not follow the instructions. Consequently, the

Trooper stopped the testing. Then, he asked if she would consent

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to a PBT [breath] test. [Panick] consented, but had difficulty

following the directions and blowing as instructed. Without

completing the test, [Panick] walked away abruptly and sat in her

vehicle. Ultimately [Panick] was able to comply with the

instructions and she was positive for alcohol.[3]

Based on his training, experience, and observations of the scene,

Trooper Norman believed that [Panick] was incapable of safe

driving. When [Panick] was advised that she was being taken into

custody for suspicion of Driving Under the Influence, [Panick]

stated that she is “not going to jail,” and clenched her hands

around the steering wheel tightly in an effort to prevent her

removal from the vehicle. [Panick] had to be forcibly removed

from the vehicle. She was handcuffed, placed in the front seat of

Trooper Norman’s patrol vehicle, and transported to the

Pennsylvania State Police Fogelsville Barracks for additional

evaluation.

Upon arrival at the Fogelsville Barracks, the 12 step drug

recognition process was initiated. Trooper Norman administered

the Walk and Turn test in which [Panick] performed poorly. She

displayed numerous cues of impairment, including missing a heal-

to-toe step, stepping off the line, and turning abruptly instead of

taking small steps. Similarly, [Panick] displayed many cues

during the One Leg Stand test, including swaying, using her arms

for balance, and legs/body tremors. These tests confirmed

Trooper Norman’s opinion that [Panick] was under the influence

of a combination of controlled substances that rendered her

incapable of safe driving.6 Therefore, [Panick] was transported to

the Lehigh County Central Booking Center for a legal blood draw.

[Panick] consented to the same, and the blood was drawn at

10:55 P.M. The analysis of the blood drawn revealed the presence

of the following drugs, within the therapeutic range:

Amphetamine, Diphenhydramine, Clonazepam, 7-

Aminoclonazepan, Trazodone, and Quetiapine.

__________

6 Lisa Milinchuk, a certifying scientist at Health Network

Laboratories and an expert in forensic chemistry, testified

that the drugs present in [Panick’s] system all have side

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3 It merits mention that the subsequent blood draw revealed only controlled

substances, and no alcohol, in Panick’s blood. See N.T., 11/8/2018, at 57.

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effects including drowsiness and dizziness. In addition, she

opined that these drugs have an additive effect when used

in combination with each other.

Trial Court Opinion, 5/20/2019, at 4-7 (record citations omitted).

Panick was charged with DUI – controlled substances, careless driving,

moving stopped or parked vehicle, driving vehicle at safe speed, and operation

of motor vehicle without required financial responsibility.4 The case proceeded

to a non-jury trial on November 8, 2018. The trial court found Panick guilty

of the above-referenced three offenses, and not guilty of the other two

summary violations. On December 30, 2018, the trial court granted trial

counsel’s petition to withdraw because Panick had retained new counsel for

sentencing and appeal. Thereafter, on March 25, 2019, the court sentenced

Panick to a term of six months’ intermediate punishment, with thirty days’

house arrest and electronic monitoring, for her DUI conviction. The other

offenses resulted only in a fine. This timely appeal followed.5

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4 See 75 Pa.C.S. §§ 3802(d)(3), 3714(a), 3333, 3361, and 1786(f),

respectively.

5 On April 17, 2019, the trial court ordered Panick to filed a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Defense

counsel did not comply with that order. However, on May 29, 2019, counsel

moved to file a concise statement nunc pro tunc, asserting he did not receive

the court’s April 17th notice. The court granted the motion on May 31, 2019,

and directed counsel to file a concise statement within 10 days. Counsel

complied with the directive and filed a concise statement on June 10, 2019.

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In her first issue on appeal, Panick challenges the sufficiency of the

evidence supporting her convictions of DUI and careless driving. Our review

of a sufficiency claim is well-established:

We [view] all the evidence admitted at trial in the light most

favorable to the verdict winner, to determine whether there is

sufficient evidence to enable the fact-finder to find every element

of the crime beyond a reasonable doubt. We may not weigh the

evidence and substitute our judgment for the fact-finder ... [ ]

[who] 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. Spotti, 94 A.3d 367, 374 (Pa. Super. 2014) (en banc)

(internal citations and punctuation omitted), appeal dismissed as

improvidently granted, 132 A.3d 151 (Pa. 2016).

Panick was convicted of DUI under Subsection 3802(d)(2), which

provides, in pertinent part:

(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. § 3802(d)(2). Significantly, a prosecution under this subsection

does not require expert testimony to determine the amount of drugs in the

defendant’s blood. See Commonwealth v. Griffith, 32 A.3d 1231, 1239

(Pa. 2011). Rather, similar to a general impairment conviction under

Subsection 3802(a)(1), the focus is on the inability of the defendant to safely

drive, operate, or be in actual physical control of a vehicle after taking

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controlled substances (prescription or not), without consideration of the

amount of substances detectable in a blood test. See id. Panick was also

convicted of careless driving, which requires proof she drove “a vehicle in

careless disregard for the safety of persons or property[.]” 75 Pa.C.S. §

3714(a).

Here, Panick argues the Commonwealth failed to prove she was unable

to drive safely, and/or drove in careless disregard for the safety of persons or

property. See Panick’s Brief at 13-14. She insists the Commonwealth’s case

rested “largely on a subjective impression of a collection of traits attributable

to [her] health problems and overall demeanor.” Id. Panick explains:

The fact that a person has bloodshot eyes does not necessarily

establish intoxication; it also establishes a head cold, as Ms.

Panick testified. The fact that a person cannot perform the

physically demanding sobriety tests does not necessarily establish

intoxication; it also establishes that Ms. Panick had a long, painful

history of physical damage to her leg, hip, and back which

prevented her from successfully completing those test[s].

Likewise, the fact that a person exhibits a slow and slurred speech

pattern does not necessarily establish intoxication but could also

simply be a physical trait. Evidence that Ms. Panick was difficult

in that she did not follow instructions and talked over the trooper

does not establish intoxication; as the Court observed, it only

established a quirk of Ms. Panick’s personality.

Id. (record citation omitted). Indeed, Panick asserts the only evidence of her

purported inability to drive safely was the fact that she “backed off a narrow,

icy, unfamiliar road, on a dark night in an attempt to turn her vehicle around.”

Id. at 15. Furthermore, she insists that absent testimony to establish that

her demeanor was “directly attributable to her prescription medications, there

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is insufficient evidence to establish that she violated either Section 3802(d)(2)

or Section 3714.” Id.

Our review of the record reveals sufficient evidence to support the trial

court’s verdict. With respect to the DUI conviction, there is no dispute Panick

was under the influence of prescription drugs. Trooper Norman, a Drug

Recognition Expert, testified that Panick advised him of the prescription

medications she was taking to treat anxiety, depression, digestion issues,

pain, and sleep issues, as well as over-the-counter cough syrup. See N.T.,

11/8/2018, at 44. The trooper also observed a bottle of morphine pills on the

passenger seat of her car. See id. Although Panick testified the only

prescription drug she took on the day of the incident was Dexadrine to treat

her attention deficit disorder,6 Trooper Norman testified Panick told him she

took Dexadrine, Tramadol, Neurontin, and cough syrup between 5:00 p.m.

and 6:00 p.m. that evening, only an hour or two before the incident. See id.

at 58. When asked if any of the medications would impair a person’s ability

to drive, Trooper Norman testified that everyone’s tolerance level is different,

but in combination the drugs would “definitely [have] … an additive effect.”

Id. at 45. The Commownealth’s forensic chemistry expert, Lisa Milinchuk,

testified Panick’s blood test revealed therapeutic levels of amphetamine,

Diphenhydramine, Clonazepam, 7-Amino Clonazepam, Trazodone and

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6 See N.T., 11/8/2018, at 87.

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Queitiapine in her system.7 See N.T., 11/8/2018, at 75. Therefore, the

Commonwealth presented sufficient evidence that Panick was under the

influence of prescription narcotics.

However, the Commonwealth was still required to prove she was under

the influence of controlled substances to such a degree that it impaired her

ability “to safely drive, operate or be in actual physical control of the

movement of a vehicle.” 75 Pa.C.S. § 3802(d). The testimony of both Harding

and Trooper Norman provides ample evidence to support this finding. First,

Harding described Panick as “a little confused” and “kind of shaking” when she

approached Panick’s vehicle in her yard. N.T., 11/8/2018, at 11. Moreover,

when Harding and her neighbor asked Panick to put her car in park so they

could tow it out of the ditch, Panick drove in reverse, further into Harding’s

backyard. See id. Harding also testified that Panick did not seem to know

how long she had been driving, stating she came from five minutes away, but

the town where she lived was forty minutes away. See id. at 13. Lastly,

Harding stated Panick implored them not to call the cops. See id. at 16.

Trooper Norman, a trained Drug Recognition Expert, described Panick

as frantic, “incoherent at times,” and “very confused, disoriented.” Id. at 35,

37. He also noted her speech was slurred and she had bloodshot eyes. See

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7 Milinchuk explained: (a) amphetamine would typically be found in Adderall;

(b) Diphenhydramine is typically found in Benadryl; (c) Clonazepam and 7-

Amino Clonazepam are found in Valium or Xanax; and (d) Trazodone and

Queitiapine are anti-depressants. See id. at 76.

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id. at 36. Trooper Norman testified that based on his training and experience,

he believed Panick was “possibly … under the influence of some sort of drug,

alcohol or maybe a medical related incident.” Id. at 37. She could not locate

the emergency brake in her car when he asked her to apply it, and she

fumbled through her paperwork when he requested to see her documentation.

See id. at 36. At that point, Panick “mentioned that she didn’t want to get a

DUI.” Id. Although the trooper detected an odor of alcohol on her breath,

Panick insisted she did not have any alcoholic beverages that evening. See

id. at 37. She did, however, provide him with a list of her prescription

medications, and told him she took several of them between 5:00 and 6:00

p.m. See id. at 43-44, 58. Trooper Norman testified Panick refused to follow

directions when he attempted to conduct the field sobriety tests on the scene,

and displayed indications of impairment when she performed the tests at the

barracks. See id. at 39, 46. Panick did not tell the trooper she had any

medical issues that would compromise her ability to perform the tests. See

id. at 46, 60. Trooper Norman concluded that, in his opinion, Panick was

“incapable of operating the vehicle and she was, in fact, impaired by a drug

or combination thereof rendering that.” Id. at 67.

Although Panick provided alternative explanations for her behavior, the

trial court, as fact-finder, clearly did not credit her testimony. See Spotti,

supra. Moreover, she fails to acknowledge that the court also viewed the

video recording from Trooper Norman’s patrol car, and was, therefore, able to

compare, first hand, Panick’s behavior at the scene with the way she

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presented herself in court. See N.T., 11/8/2018, at 50-52. We conclude the

testimony of both Trooper Norman and Ms. Harding supports the trial court’s

determination that Panick was under the influence of controlled substances to

such a degree that she was incapable of driving safely or being in actual

physical control of her vehicle.

We note Panick provides very little argument concerning her careless

driving conviction. See Panick’s Brief at 13-14. “The mens rea requirement

applicable to § 3714, careless disregard, implies less than willful or wanton

conduct but more than ordinary negligence or the mere absence of care under

the circumstances.” Commonwealth v. Ford, 141 A.3d 547, 556 (Pa. Super.

2016), appeal denied, 164 A.3d 483 (Pa. 2016). In the present case, Panick’s

actions in backing over bushes8 and into a ditch, 30 feet into Harding’s yard,

supports the court’s determination that she drove in careless disregard for

property. See 18 Pa.C.S. 3714(a). Accordingly, Panick’s sufficiency challenge

fails.

Next, Panick argues the trial court demonstrated bias against her such

that her due process rights were violated, and she was denied the possibility

of a fair trial. See Panick’s Brief at 16. Panick contends the trial court did not

keep an open mind about her innocence as demonsrated by the court’s

“repeated misstatements [of] the law; reliance on the improper, uninformed

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8Harding testified Panick “crushed” the bushes in her yard that line the ditch

and sit about five feet off the road. N.T., 11/8/2018, at 26-27.

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quasi-expert testimony of [an] unqualified layperson to establish a necessary

element of several offenses; and a refusal to accept innocent explanations for

allegedly criminal acts.” Panick’s Brief at 20. Specifically, Panick refers to (1)

the court’s comment that she is not supposed to drive if she has any controlled

substances in her system;9 (2) Trooper Norman’s “completely uninformed,

uneducated lay opinion as to the functions and side effects of Ms. Panick’s

medications;”10 and (3) the court’s dismissal “out of hand” of the innocent

explanations for Panick’s behavior based on her “medical issues and personal

quirks.”11

Preliminarily, however, we must determine if this issue is waived.

Although Panick acknowledges trial counsel did not object to the court’s

comments, she insists “Pennsylvania’s appellate waiver doctrine is not strictly

applied to claims of judicial misconduct.” Panick’s Brief at 17. Citing to

Commonwealth v. Hammer, 494 A.2d 1054 (Pa. 1985), Panick argues

counsel is not required to make a timely objection when doing so would be

futile in light of the judge’s comments. See Panick’s Brief at 17. We disagree.

First, we note Hammer was abrogated by Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002). Panick maintains it was overruled on other grounds.

However, we find procedurally, Hammer was on par with Grant. The

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9 See N.T., 11/8/2018, at 98.

10 Panick’s Brief at 23, citing N.T., 11/8/2018, at 44-45.

11 Id. at 27, citing N.T., 11/8/2018, at 114.

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Hammer Court overlooked trial counsel’s failure to object to court bias and

directly addressed the defendant’s claims on direct appeal. In Grant, the

Supreme Court specifically overruled Hammer, and held that, “as a general

rule, a petitioner should wait to raise claims of ineffective assistance of trial

counsel until collateral review.”12 Grant, supra, 813 A.2d at 738. Therefore,

Panick’s judicial bias claim is waived on direct appeal. See Commonwealth

v. Colon, 31 A.3d 309 (Pa. Super. 2011), appeal denied, 42 A.3d 1058 (Pa.

2012) (holding Hammer was overruled by Grant, and, therefore, defendant’s

challenge to trial court’s purportedly improper and biased remarks to and

questioning of defense witnesses was waived absent an objection at trial).

Nevertheless, we note even if we were to address Panick’s issue, we

would conclude she is entitled to no relief. Our review of the record from the

non-jury trial reveals the trial court understood the law applicable to Panick’s

case and displayed no bias or ill will towards her.

Panick first cites to the court’s discussion with her about the amount of

prescribed medication in her blood test. See Panick’s Brief at 21-22, quoting

N.T., 11/8/2018, at 98-88. She insists the court “very clearly misunderstood

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12 We note the facts of this case do not satisfy any of the exceptions to the

general deferral rule set forth in Grant. See Commonwealth v. Holmes,

79 A.3d 562, 563-564 (Pa. 2013) (holding trial courts may address

ineffectiveness claim on post-verdict motions and direct appeal when (1) the

counsel’s ineffectiveness is both apparent from the record and meritorious; or

(2) there is good cause shown and defendant voluntarily waives his right to

seek subsequent PCRA review); Commonwealth v. Delgros, 183 A.3d 352,

361 (Pa. 2018) (adopting third exception to Grant deferral rule when “the

defendant is statutorily precluded from obtaining subsequent PCRA review”).

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and misstated the law” when it asserted “the mere presence of medication in

[her] system was sufficient for a conviction for the DUI offense[.]” Panick’s

Brief at 22. However, Panick failed to cite to the next statement by the trial

court, in which the court summarized:

So if you’re going to take something to go to sleep at night and

it’s still in your system, in combination with five other things,

these people witnessed you and said you’re not capable of

driving.

N.T., 11/8/2018, at 99-100 (emphasis supplied). It is evident the court

understood that to find Panick guilty of DUI under Subsection 3802(d)(2), it

had to find there was some amount of controlled substances in her system,

and those controlled substances affected her ability to drive safely. See id.

at 106 (defense counsel states during closing “[i]t’s not just having medication

in your system but that the medication impairing your ability to safely drive a

vehicle[,]” to which the court responds, “Yes”).

Second, Panick contends the court improperly relied on “quasi-medical

opinions offered by two unqualified witnesses.” Panick’s Brief at 23. This

claim, however, does not demonstrate judicial bias, but rather, implicates the

weight and sufficiency of the evidence supporting the verdict. In any event,

Trooper Norman testified as a Drug Recognition Expert. See N.T., 11/8/2018,

at 31. Therefore, he was qualified to describe the “functions and side effects

of [] Panick’s medications[.]” Panick’s Brief at 23.

Third, Panick criticizes the trial court for exhibiting “a closed mind to

realistic non-criminal explanations for Ms. Panick’s physical disabilities,

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anxious state, and manner of speech.” Panick’s Brief at 28. However, our

review of the transcript reveals nothing more than the court’s annoyance with

Panick’s sometimes disrespectful behavior. Panick’s claim that the court failed

to credit her defense implicates the weight of the evidence, rather than

demonstrates judicial bias. Therefore, even if we were to address Panick’s

second issue, we would conclude she is entitled to no relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/8/19

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