Commonwealth v. May

• Decision Date: 15 February 2022
• Docket Number: 139 EDA 2021
• Citation: 271 A.3d 475
• Parties: COMMONWEALTH of Pennsylvania v. Rahsaan O. MAY, Appellant
• Court: Pennsylvania Superior Court

271 A.3d 475

COMMONWEALTH of Pennsylvania

v.Rahsaan O. MAY, Appellant

No. 139 EDA 2021

Superior Court of Pennsylvania.

Argued November 16, 2021

Filed February 15, 2022

Emily L. Mirsky, Media, for appellant.

Steven M. Papi, Media, for appellant.

Frederick J. Stollsteimer, District Attorney, Media, for Commonwealth, appellee.

Dennis D. Woody, Assistant District Attorney, Media, for Commonwealth, appellee.

Andrew C. Christy, Media, Amicus

Gopalakrish Blachandran, University Park, Amicus

BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.

OPINION BY BOWES, J.:

Rahsaan O. May appeals from his November 23, 2020 judgment of sentence imposed after the trial court found him guilty of driving under the influence ("DUI") of a controlled substance. After careful review, we affirm.

The trial court summarized the facts as follows:

On February 28, 2018[,] at 8:33 a.m., police officers from the Radnor Township Police Department were dispatched to the 200 block of King of Prussia Road, Radnor Township, Delaware County, Pennsylvania to respond to a report of an overturned box truck. King of Prussia Road is a state highway near a railroad overpass utilized by both AMTRAK and SEPTA's regional rail system. King of Prussia Road and the secondary roadways leading to the overpass have multiple, clearly posted bridge height signs referencing a 10' 10" clearance. Upon arriving on scene, Officer Janoski observed a white box truck bearing Pennsylvania registration ZJM-4627 partially overturned and resting on its driver side positioned under the bridge. The truck displayed the name "Two Men and A Truck" and appeared to Officer Janoski to be a 19-foot box truck with a height of [twelve] feet. During the crash investigation it was determined the truck was operated by [Appellant] who was positively identified by his Pennsylvania Drivers' License number.

Appellant May stated he was traveling southbound on King of Prussia Road when the box of the truck struck the I-beam of the bridge causing the vehicle to overturn. [Appellant] was aware the truck was [twelve] feet high but he did not see the signs warning of the bridge height. When the truck collided with the bridge it overturned striking an occupied vehicle traveling under the overpass in a northbound direction.

While speaking with [Appellant] at the scene, Officer Janoski detected an odor of burnt marijuana emanating from his person. When asked if he smoked anything that day, [Appellant] responded: "I smoked a little weed this morning." While speaking with [Appellant], he persistently placed his hands inside his sweatshirt pockets despite Officer Janoski's repeated instructions to [Appellant to] keep his hands visible. [Appellant] voluntarily agreed to an officer safety pat down and a green, leafy vegetable matter was located on his person.

[Appellant] submitted to [s]tandardized [f]ield [s]obriety [t]esting and was ultimately placed in police custody. Appellant was transported to Bryn Mawr Hospital where he was advised of [c]hemical [t]esting [w]arnings DL-26 and voluntarily submitted to a chemical test of his blood.

Trial Court Opinion, 2/26/21, at 1-3 (citations omitted).

Appellant was arrested and charged with DUI of a controlled substance. The Commonwealth filed a motion in limine to exclude the testimony of Appellant's proposed expert, Dr. Lawrence Guzzardi. On October 14, 2020, the trial court granted oral argument on the motion before excluding the testimony and report. Appellant immediately proceeded to a non-jury trial. The Commonwealth put forth the testimony of the operator of the vehicle that Appellant hit, the officer who responded to the accident, and a toxicologist who opined that Appellant's blood contained marijuana metabolites. Appellant elected not to testify but argued that the marijuana detected in his blood was too low to impair his ability to operate a motor vehicle. The trial court found Appellant guilty of DUI of a controlled substance, an ungraded misdemeanor.

On November 23, 2020, the court sentenced Appellant to six months of restrictive probation and ordered him to pay a mandatory $1,000 fine and $168 lab fee. As conditions of his restrictive probation, Appellant was ordered to complete twenty days of electronic home monitoring, eighty hours of community service, undergo a Court Reporting Network evaluation, and complete safe driving classes. Appellant filed a post-sentence motion which was denied. The instant appeal followed. Both Appellant and the trial court complied with the mandates of Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Whether the lower court erred in precluding the testimony of defense expert, Lawrence Guzzardi, MD, to refute the laboratory report (Exhibit C8) and testimony of two prosecution witnesses, since the expert's proffered testimony was relevant, including on the issue of credibility, and therefore could have caused the factfinder to disregard some or all of the prosecution's evidence, thereby resulting in acquittal?

2. Whether the court below erred and imposed an illegal sentence when it ordered Appellant to pay a fine without first assessing his ability to pay?

Appellant's brief at 4-5.

First, Appellant challenges the trial court's decision to exclude expert testimony and a report. See Appellant's brief at 12-18. We review a trial court's decision to admit or exclude expert opinion testimony under an abuse of discretion standard. See Commonwealth v. Pi Delta Psi, Inc. , 211 A.3d 875, 881 (Pa.Super. 2019). An abuse of discretion "occurs if the trial court renders a judgment that is manifestly unreasonable, arbitrary or capricious; that fails to apply the law; or that is motivated by partiality, prejudice, bias or ill-will." Id . (quoting Hutchinson v. Penske Truck Leasing Co. , 876 A.2d 978, 984 (Pa.Super. 2005) ).

Herein, the trial court prohibited Lawrence Guzzardi, M.D., a toxicologist, from submitting a report or offering testimony after Appellant conceded that Dr. Guzzardi would not dispute the test results indicating the presence of marijuana in Appellant's blood. N.T. Non-Jury Trial, 10/14/20, at 15. Instead, he planned to offer testimony questioning Appellant's level of impairment. Id . The trial court reasoned that since the controlled substance subsection at issue prohibited any amount of the controlled substance to be within an accused's system, testimony regarding the level of Appellant's impairment was not relevant. Id .; see also Pa.R.E. 402 (explaining that relevant evidence is evidence that tends to establish a material fact in the case or make a fact at issue more or less probable). We agree.

Appellant proceeded to trial on a charge of 75 Pa.C.S. § 3802(d)(1)(i), DUI of a controlled substance, which provides:

(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:

(1) There is in the individual's blood any amount of a:

(i) Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

75 Pa.C.S. § 3802(d)(1)(i) (emphasis added).

Therefore, for the Commonwealth to meet its burden of proof, it needed to prove: (1) that Appellant was in actual physical control or operated the motor vehicle and (2) that he had a schedule I controlled substance in his blood. Id . The Commonwealth was not required to establish that Appellant was impaired in order to convict him pursuant to § 3802(d)(1)(i). See Commonwealth v. Hutchins , 42 A.3d 302, 310 (Pa.Super. 2012) (finding that a conviction under § 3802(d)(1) does not require that a driver be impaired, only that a driver has any amount of a specifically enumerated controlled substance in his blood). Since the DUI subsection at issue criminalizes any amount of schedule I controlled substance in the blood, it was within the court's discretion to conclude that testimony regarding Appellant's level of impairment was irrelevant.

Appellant counters that Commonwealth v. Taylor , 209 A.3d 444 (Pa.Super. 2019), supports his position. See Appellant's brief at 14-16. However, his reliance on Taylor is misplaced. In Taylor , the appellant was arrested for DUI after she crashed her vehicle into a utility pole, failed field sobriety testing, and admitted to taking Xanax

and Adderall. No blood testing was completed, and the appellant was unable to provide the amounts she took or how long before the accident they were ingested.

The appellant was charged with endangering the welfare of a child and DUI of a Schedule IV controlled substance, a different subsection than the one at issue in the case at bar. See 75 Pa.C.S. § 3802(d)(2). At trial, "a central point of dispute" was whether the appellant was impaired by controlled substances at the time she crashed the vehicle. Id . at 447. To establish impairment, the Commonwealth relied on the arresting officer's testimony about the field sobriety testing and his opinion that the appellant's performance was impaired due to drug use. The defense countered that the appellant's poor performance was due to a head injury

and sought to admit the testimony of Dr. Guzzardi. Dr. Guzzardi confirmed that appellant had been prescribed Xanax and Adderall, but explained that, when taken as proscribed, the appellant should have experienced little to no side effects from the drugs. Dr. Guzzardi also attempted to opine that field sobriety testing had never been validated as indicators of impairment due to drug use. However, the Commonwealth objected and the trial court sustained the objection. Accordingly, the jury never heard Dr. Guzzardi's opinion regarding the effectiveness of field sobriety testing for detecting drug impairment. The appellant was convicted.

On appeal, we reversed, holding that Dr. Guzzardi's opinion was derived from "years of rigorous scholarship" and would have rebutted the officer's conclusion that the appellant was impaired by drugs. Id . at...