COMMONWEALTH OF PENNSYLVANIA v. NICOLE MARGOT TARRACH, Defendant. Justin D. Bodor, Esquire, Assistant District Attorney for the Commonwealth

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1 109 COMMONWEALTH OF PENNSYLVANIA v. NICOLE MARGOT TARRACH, Defendant Criminal Law: Driving Under the Influence of a Controlled Substance; Following Too Closely; Sufficiency of the Evidence 1. There is no requirement that a drug be measured in a defendant s blood, nor is there any required manner by which the Commonwealth must prove that a defendant was under the influence of a drug. 2. In order to convict a defendant under 75 Pa.C.S.A. 3802(d)(2), the Commonwealth must only prove that the defendant was under the influence of a drug to a degree that impaired her ability to safely drive or operate a vehicle. It does not require that a specific amount or quantity of the drug be proven in order to successfully prosecute the case. 3. There is no requirement that direct evidence is necessary to support a conviction for following too closely. 4. In determining whether there is sufficient evidence to sustain a verdict, the appellate court is required to consider the evidence admitted at trial in a light most favorable to the Commonwealth as the verdict-winner, and grant the Commonwealth all reasonable inferences that can be derived from the admitted evidence. 5. In support of its verdict, the court referenced the eyewitness testimony as to the Defendant s condition, as well as the testimony concerning the presence of prescription drugs in the Defendant s blood. COMMONWEALTH OF PENNSYLVANIA v. NICOLE MARGOT TARRACH. IN THE COURT OF COMMON PLEAS OF BERKS COUNTY, PENNSYLVANIA. CRIMINAL DIVISION No. 4023/09. BOCCABELLA, JUDGE Justin D. Bodor, Esquire, Assistant District Attorney for the Commonwealth Melissa M. Bleecher, Esquire, Attorney for Defendant at Trial Brie R. Halfond, Esquire, Attorney for Defendant On Appeal MEMORANDUM OPINION, John A. Boccabella, J. December 5, 2011 On September 27, 2011, following a bench trial, this Court found Nicole Margot Tarrach (hereinafter Defendant ) guilty of Count One, Driving Under the Influence of a Controlled Substance/Drug 1 and Count Two, Following Too Closely 2. At the conclusion of said bench trial, the Honorable John A. Boccabella sentenced Defendant on Count One to serve a period of not less than seventy-two (72) consecutive hours, nor more than six (6) months to the Berks County Jail System, effective October 28, In addition, Defendant was Ordered to pay a one-thousand dollar ($1,000) fine. On Count Two, Defendant was Ordered to pay a fine of twenty-five dollars 1 75 Pa.C.S.A. 3802(d)(2) Pa.C.S.A. 3310(a).

2 110 ($25) plus costs. On October 7, 2011, this Court, upon consideration of Defendant s Post-Sentence Motion, Ordered that Defendant s sentence be stayed pending Defendant s appeal. At trial, Defendant was represented by Melissa M. Bleecher, Esquire, of the Berks County Public Defenders Office. On appeal, Defendant is represented by Brie R. Halfond, Esquire, also of the Berks County Public Defenders Office. On October 3, 2011, appellate counsel filed a Notice of Appeal with the Superior Court of Pennsylvania. This Court issued an Order, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), requiring that Defendant file a Concise Statement of Matters Complained of On Appeal (Concise Statement) within twenty-one (21) days of the Order. In compliance with said Order, Defendant raises the following issues on appeal: 1. The evidence was insufficient to support the guilty verdict for driving under the influence of a controlled substance, 75 Pa. C.S.A. 3802(d)(2), where the Commonwealth failed to prove beyond a reasonable doubt that [Defendant] was under the influence of a drug or combination of drugs to a degree which impaired her ability to safely drive, operate of be in actual physical control of the movement of a vehicle. 2. The evidence was insufficient to support the guilty verdict for following too closely, 75 Pa. C.S.A. 3310(a), where the Commonwealth failed to prove beyond a reasonable doubt that [Defendant] followed another vehicle more closely than was reasonable and prudent. FACTUAL SUMMMARY On April 30, 2009, at approximately 4:03 p.m., Officer Chad Vargo of the South Heidelberg Township Police Department was dispatched to the area of Penn Avenue at the intersection of Green Valley Road in South Heidelberg Township, Berks County, PA, for a two vehicle crash. Upon arrival, Officer Vargo made contact with the drivers of both vehicles involved in the crash. Constantine Pappas ( Mr. Pappas ), the victim and driver of the vehicle that was struck by Defendant s vehicle, testified that immediately after the collision he observed Defendant approach his vehicle with an unsteady gait. He further testified that Defendant s eyes were glassy and that her speech was slurred. Officer Vargo testified that upon making contact with Defendant, who was the driver of the striking vehicle, he also observed her to have an unsteady gait. Defendant subsequently refused medical treatment. Defendant informed Officer Vargo that she had consumed prescription drugs earlier that day. Based on his training and experience, along with his observations of Defendant s appearance, speech, and gait, Officer Vargo believed that Defendant may have been under the influence of drugs to

3 111 a degree which rendered her incapable of safely driving. Officer Vargo administered a series of standard field sobriety tests (hereinafter SFSTs ) on Defendant. Officer Vargo testified that Defendant failed the SFSTs and that she exhibited signs of drug intoxication through the SFSTs. At that time, Officer Vargo placed Defendant under arrest for suspicion of driving under the influence. Defendant was transported to St. Joseph s Hospital for her blood to be drawn. Dr. Laura Labay, a board certified forensic toxicologist, testified as to the results of the toxicology testing performed on blood samples collected from Defendant on April 30, At trial, Dr. Labay testified that the first toxicology detected Alprazolam, a benzodiazepine that s called Xanax, at a concentration of twenty-nine (29) nanograms per milliliter. Additionally, Dr. Labay testified that a subsequent toxicology report detected Amphetamine at a concentration of one-hundred and fifty (150) nanograms per milliliter, Citalopram at a concentration of three-hundred and twenty (320) nanograms per milliliter, Hydroxyzine at a concentration of fiftyeight (58) nanograms per milliliter, Oxycodone at a concentration of ninety-two (92) nanograms per milliliter, and Topitamate at a concentration of fifteen (15) micrograms per milliliter. Dr. Labay further testified that the aforementioned drugs are all prescription drugs. Lastly, Dr. Labay testified that although the level of drugs in Defendant s system on the date in question may have been within the therapeutic range, it was her professional opinion that due to the adverse effects of some of said drugs, Defendant was incapable of safely operating a motor vehicle on the date and time in question. DISCUSSION Defendant has raised two issues for appellate review. The first issue is that there was insufficient evidence to support this Court s guilty verdict for driving under the influence of a controlled substance. Defendant specifically asserts that the Commonwealth failed to prove beyond a reasonable doubt that Defendant was under the influence of a drug which impaired her ability to safely drive, operate or be in actual physical control of the movement of a vehicle. When reviewing a challenge to the sufficiency of the evidence to support a conviction, the appellate court is required to consider the evidence admitted at trial in a light most favorable to the Commonwealth as the verdict-winner, and grant the Commonwealth all reasonable inferences that can be derived from the admitted evidence. Commonwealth v. Magliocco, 806 A.2d 1280, 1282 (Pa. Super. 2002) (quoting Commonwealth v. Jackson, 485 A.2d 1102, 1103 (Pa. 1984)). An appellate court will deem the evidence legally sufficient to support a conviction only if the evidence enables the trier of fact to find every element of the crime charged beyond a reasonable doubt. Commonwealth v. Morales, 669 A.2d 1003 (Pa. Super. 1996) (citing Commonwealth v. Zimmick, 653 A.2d 1217, 1220 (Pa. 1995)). In making such an evaluation, the appellate court may not weigh the evidence and substitute

4 112 its judgment for that of the fact-finder. Commonwealth v. Derr, 841 A.2d 558, 560 (Pa. Super. 2004). The Motor Vehicle Code 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.A. 3802(d). In the case at hand, there is no issue regarding Defendant driving, operating, or being in actual physical control of the vehicle at the time in question. In fact, during direct-examination, Defendant stated, [a]s soon as [the accident] occurred, I hopped right out of the car, went a hundred feet back to the car that I hit and immediately asked the passengers, Were they okay Notes of Testimony, September 27, 2011, pp (hereinafter N.T. ). Thus, Defendant s issue is whether or not she was under the influence of a drug or combination of drugs to a degree which impaired her ability to safely drive the vehicle on the date and time in question. Under 75 Pa.C.S.A. 3802(d)(2), there is no requirement that a drug be measured in a defendant s blood, nor is there any required manner by which the Commonwealth must prove that a defendant was under the influence of a drug. See Commonwealth v. Griffith, 2011 WL , 6 (Pa. 2011). In order to convict a defendant of 75 Pa.C.S.A. 3802(d)(2), the Commonwealth must only prove that the defendant was under the influence of a drug to a degree that impaired her ability to safely drive or operate a vehicle. Commonwealth v. Williamson, 962 A.2d 1200, 1204 (Pa. Super. 2008) (citing Commonwealth v. Collins, 810 A.2d 698 (Pa. Super. 2002)). It does not require that a specific amount or quantity of the drug be proven in order to successfully prosecute under 3802(d). Id. In the case sub judice, there were several witnesses who testified as to their observations of Defendant shortly after the motor vehicle collision had occurred. The victim, Mr. Pappas, testified that immediately after the collision he observed Defendant approach his vehicle with an unsteady gait. N.T., 6/20/11, p. 21. He further testified that Defendant s eyes were glassy and that her speech was slurred. N.T., 6/20/11, p. 23. Additionally, the testimony of the affiant, Officer Vargo, revealed that Defendant had failed the three SFSTs that were administered and had demonstrated signs of intoxication. N.T., 6/20/11, pp Lastly, Dr. Labay testified at trial as to the prescription drugs that were in Defendant s blood on the date and time in question. Based on the toxicology reports from the blood samples provided by Defendant on the date in question, Dr. Labay formulated a professional opinion that due to the adverse effects of some of the drugs in Defendant s blood at the time in

5 113 question, Defendant was incapable of safely operating a motor vehicle on the date and time in question. N.T., 6/20/11, p. 62. When viewing the evidence presented at trial in the light most favorable to the Commonwealth, it is evident that there was sufficient evidence to enable the trier of fact to find that every element of Driving Under the Influence of a Controlled Substance/Drug 3 was satisfied beyond a reasonable doubt. Defendant s second issue for appellate review is that the evidence was insufficient to support the guilty verdict for Following Too Closely, 75 Pa. C.S.A. 3310(a). Specifically, Defendant asserts that the Commonwealth failed to prove beyond a reasonable doubt that Defendant followed another vehicle more closely than was reasonable and prudent. The Motor Vehicle Code provides in pertinent part: (a) General Rule. The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the highway. 75 Pa.C.S.A. 3310(a). In determining whether there is sufficient evidence to sustain a verdict, the appellate court is required to consider the evidence admitted at trial in a light most favorable to the Commonwealth as the verdict-winner, and grant the Commonwealth all reasonable inferences that can be derived from the admitted evidence. Commonwealth v. Magliocco, 806 A.2d 1280, 1282 (Pa. Super. 2002) (quoting Commonwealth v. Jackson, 485 A.2d 1102, 1103 (Pa. 1984)). As such, the testimony elicited at Defendant s trial was sufficient to enable the trier of fact to find Defendant guilty of Following Too Closely 4. There is no requirement that direct evidence is necessary to support a conviction for following too closely. Commonwealth v. Kishbaugh, 11 Pa. D. & C.3d 146, (C.P. 1979). Thus, the circumstantial evidence presented at trial was equally as effective in enabling the fact-finder to determine that Defendant violate 75 Pa.C.S.A In fact, there was sufficient evidence establishing that the manner in which Defendant followed the vehicle driven by Mr. Pappas was more closely than is reasonable and prudent. At trial, Mr. Pappas testified that he began to slow down while he approached a traffic light that had changed. N.T., 6/20/11, p. 19. He further testified that while looking in his [rear view] mirror, he noticed another vehicle continue to approach his vehicle from behind. Id. Shortly thereafter, the vehicle driven by Mr. Pappas was hit from the rear, causing the vehicle s back window to be smashed. Id. Additionally, Defendant admitted that her vehicle struck the vehicle driven by Mr. Pappas. N.T., 9/27/11, p. 25. Lastly, Tracy Iezzy, the passenger in the vehicle driven by Mr. Pappas, testified as to the road conditions on the day in question. She testified that it was a 3 75 Pa.C.S.A. 3802(d)(2) Pa.C.S.A. 3310(a).

6 114 sunny day, with no rain or other issues of visibility. N.T., 6/20/11, p. 28. Based on the totality of the circumstances, sufficient evidence was presented at trial to establish that Defendant had violated 75 Pa.C.S.A. 3310(a). For the foregoing reasons, this Court respectfully requests that Defendant s appeal be DENIED.