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Commonwealth v. Harrington

Superior Court of Pennsylvania

May 22, 2013

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
CORY LEE HARRINGTON Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence of April 19, 2012 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000765-2011

BEFORE: BOWES, J., OLSON, J., and WECHT, J.

MEMORANDUM

WECHT, J.

Cory Lee Harrington ("Appellant") appeals from the judgment of sentence entered April 19, 2012.[1] After careful review, we affirm.

The trial court summarized the case's history as follows:

On June 27, 2011, Eastern Adams Regional Police Sergeant Ramsburg observed a green Nissan sedan traveling westbound in the center turn lane of York Road, Oxford Township, Adams County. The vehicle was traveling approximately 50 miles per hour in the turn lane as if it was the westbound lane. Sergeant Ramsburg, assisted by Eastern Adams Regional Police Officer Mulder, conducted a vehicle stop. Officer Mulder approached the driver's side of the vehicle and observed the Appellant …, to be the operator of the motor vehicle. When Officer Mulder requested Appellant's information, he noticed a strong odor of gasoline emitting from Appellant and his vehicle. Officer Mulder's inquiry concerning the odor of gasoline resulted in Appellant explaining he "did not know why" he smelled. Appellant was unable to provide his personal information, however, kept handing Officer Mulder money claiming that it was his driver's license. Officer Mulder described Appellant as being very confused and disoriented. When asked if he had been drinking, Appellant indicated that he had had four beers but felt fine. Officer Mulder requested Appellant to step out of the vehicle so that he may speak with him. When Appellant exited the vehicle, Officer Mulder noticed his belt was undone, he had on no shoes, and that his appearance was dirty. Appellant explained to the officer that he did not know where or how he got like that. After the administration of field sobriety tests, Officer Mulder determined Appellant to be under the influence of an intoxicant to the extent that he was incapable of safe driving. Appellant conceded that he was drunk and was placed under arrest. Appellant was taken to Gettysburg Hospital for a blood draw. While at the hospital, Appellant admitted to ingesting the controlled substance, Ambien, prior to driving. A subsequent blood test revealed the presence of Zolpidem in Appellant's blood at a level of 440 ng/mL.1
1 Zolpidem is the generic name for Ambien.
Appellant was charged with driving under the influence of a controlled substance in violation of 75 Pa.C.S.A. § 3802(d)(2) of the Pennsylvania Motor Vehicle Code (relating to driving under the influence of any drug which impairs the individual's ability to safely drive).

Trial Court Opinion ("T.C.O."), 6/22/2012, at 1-2.

On April 11, 2012, following a non-jury trial, Appellant was found guilty of driving under the influence. On April 19, 2012, Appellant was sentenced to sixty months in the Intermediate Punishment Program.[2] On May 7, 2012, Appellant filed the instant appeal.[3]Appellant raises three issues on appeal:

1. Did the Court err in refusing to recognize a defense of involuntary intoxication with regard to Appellant's ingestion of a prescription medication, specifically Ambien (zolpidem), in violation of Appellant's due process rights guaranteed to him through the Fourteenth Amendment of the United States Constitution and Article I, Section 9 of the Constitution of Pennsylvania?
2. Did the Court erroneously consider evidence from the Commonwealth's expert who testified as to the amount of Ambien (zolpidem) Appellant had allegedly ingested, using a method not generally accepted by the relevant scientific community, as required by Rule of Evidence 702?
3. Did the Court erroneously disregard evidence from Appellant's expert, and corroborated by the Commonwealth's expert, that Ambien is not a cumulative drug, that is to say, taking more than the prescribed ...

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