Appeal from Judgment of Sentence entered October 13, 2010 in the Court of Common Pleas of Lebanon County Criminal Division at No: CP-38-CR-0001917-2009.
The opinion of the court was delivered by: Olson, J.
BEFORE: DONOHUE, OLSON and STRASSBURGER,*fn1 JJ.
Appellant, Corey Adam Hutchins, appeals from the judgment of sentence entered on October 13, 2010, made final by the denial of his post-sentence motion, sentencing him to an aggregate of one month to two years' incarceration, plus restitution, fines, and other conditions, for convictions on two counts of driving under the influence of a controlled substance,*fn2 four counts of recklessly endangering another person,*fn3 and one count of possession of a small amount of marijuana - personal use.*fn4 We affirm in part, reverse in part, and remand for re-sentencing.
The trial court thoroughly set forth the factual and procedural background of this matter as follows:
On September 19, 2009, at approximately 4[:00] p.m., Christopher White was traveling eastbound on Jonestown Road, a two-lane road, when Appellant's car, a 1999 Dodge Stratus turned in front of his vehicle. [Appellant was driving his car. His three young daughters were also in the vehicle.] Appellant's vehicle was making a left turn in front of White's vehicle on Old Jonestown Road. White testified that at this particular section of Old Jonestown Road there are no hills or slopes in the road. Rather, the location where the accident occurred was flat. On the date in question, there were no adverse weather conditions, such as rain or sleet, and there were no problems with lighting because it was a sunny day. White was traveling approximately forty-five (45) miles per hour, the posted speed limit, before the accident occurred. The force of impact was enough to deploy the airbags in his vehicle, and White's car was totaled.
Trooper David Mays was dispatched to assist with the accident. Trooper Mays testified that he arrived at the scene in a matter of a couple of minutes. Upon arriving at the scene, Trooper Mays observed a two-car crash along the roadway. Without speaking to [either] of the drivers, Trooper Mays searched both vehicles. Both vehicles were red Dodge
Stratuses. As Trooper Mays searched Appellant's vehicle for registration and insurance information, he smelled an odor of  marijuana. He found a Camel cigarette case in the left driver's side door pocket that contained marijuana.
The Commonwealth also presented testimony of Trooper Nathan Trate. He testified that he arrived on the scene of the accident at approximately 4:20 p.m. He confirmed White's testimony that it was sunny with no adverse conditions and that the crash occurred in a relatively flat area. In addition, Trooper Trate revealed both vehicles had severe front-end damage and the glass in Appellant's vehicle had shattered inward. At the scene, Appellant admitted that the accident was his fault because he was "distracted" and thought that he could make the turn. Trooper Trate testified that Appellant's demeanor was "unusually calm" or "flat line" after the accident. After being asked whether he had consumed alcohol, Appellant stated that he had not, but he admitted to smoking marijuana earlier in the day.
Trooper Trate testified that the prime factor in his assessment of the head-on collision was that the Appellant was distracted and "could be driving under the influence." Trooper Trate arrived at this factor because the accident occurred on a straight roadway when the surface was dry, no blame was assessed to the other driver and the weather conditions were sunny and clear. Trooper Trate stated that the Appellant never presented him with prescriptions or any type of medications that he consumed that day. Trooper Trate believed that in his opinion, based on his experience and training, the Appellant was under the influence of marijuana and that this had an impairing effect on his ability to drive. To come to that conclusion, Trooper Trate considered Appellant's "unusually calm" demeanor after the accident; furthermore, he did not see another reason why the Appellant would turn in front of a car on a straight roadway. Trooper Trate also noted that the Appellant's pupils seemed "constricted" and considered Appellant's statement that "he had a lot of things on his mind" before the accident.
In addition, Trooper Trate explained that the effects of marijuana on the body include a "lack of depth perception, fatigue [and an] inability to concentrate." Furthermore, he revealed that marijuana is a depressant which slows the body down, including one's reaction time. No standard field sobriety tests were performed because Appellant left the scene to accompany his daughters to the hospital before Trooper Trate was able to conduct the tests. At the hospital, Trooper Trate placed Appellant under arrest. The Appellant then admitted to smoking a half of a bowl [of marijuana] hours earlier in the day.
The parties stipulated that the substance found in Appellant's car was determined to be marijuana. The substance was forwarded to the Pennsylvania State Police Crime Laboratory where the items were analyzed by Forensic Scientist Robert Wagner. Wagner determined that the weight of the matter was .63 grams of marijuana, a Schedule I controlled substance.
Appellant consented to a blood draw. The toxicology report prepared by Good Samaritan Hospital indicated that Appellant had no alcohol in his blood. The Appellant's blood sample contained 43ng/ml of carboxy acid [a metabolite of the marijuana plant].
[The Commonwealth presented several witnesses regarding the chain of custody over and testing of Appellant's blood sample. The last of those witnesses was Leslie Edinboro, Ph.D.] Dr. Edinboro testified as to the differences between whole blood and serum [testing]; specifically that whole blood is "blood from which none of the elements are removed and serum is a substance from which some elements of the blood are removed." Dr. Edinboro stated that Quest[, the lab used in this matter,] uses "whole blood" to analyze a substance for controlled substance. However, Dr. Edinboro also revealed that serum is used synonymously with blood, whole blood and plasma. Dr. Edinboro went on to state that in the process of preparing samples for analysis, numerous things are added to the whole blood samples. Proteins in the blood then "clump up" or "curdle" in the blood and fall to the bottom of the tube. Dr. Edinboro testified that these proteins are removed from the blood in order to conduct the tests. An extract of the supernatant is what makes it to the instrument for analysis. The Appellant did not present the testimony of any witnesses.
Trial Court Opinion, 3/4/2011, at 4-8.
On September 14, 2010, a jury convicted Appellant of the aforementioned crimes. On October 13, 2010, the trial court sentenced Appellant. That same day, Appellant filed a post-sentence motion, which the trial court eventually denied. This appeal followed.*fn5
Appellant raises three issues on appeal:
Did the trial court err in denying Appellant's motion for judgment of acquittal as to count two - [Driving Under the Influence] DUI:
controlled substance - impaired ability 75 Pa.C.S.A. § 3802(d)(2) where the Commonwealth's evidence failed to establish that Appellant was under the influence of marijuana to a degree which impaired his ability to safely operate a motor vehicle?
Did the trial court err in denying Appellant's motion for judgment of acquittal as to both DUI offenses where the Commonwealth failed to introduce the presence of controlled substance or its metabolites in a whole blood result?
Did the trial court err in denying Appellant's motion for judgment of acquittal as it related to the counts of recklessly endangering another person where the Commonwealth's evidence ...