Appeal from the Order Entered December 5, 2012 In the Court of Common Pleas of Butler County Criminal Division at No(s): CP-10-CR-0000178-2012
BEFORE: LAZARUS, OLSON and COLVILLE, [*] JJ.
The Commonwealth appeals from the trial court's December 5, 2012 order, wherein the trial court granted Karen Lisa Graham's post-sentence motion for a judgment of acquittal. Pursuant to our Supreme Court's opinion in Commonwealth v. Griffith, 32 A.3d 1231 (Pa. 2011), we are required to vacate the trial court's order and remand for the reinstatement of the judgment of sentence.
The Commonwealth charged Karen Lisa Graham (hereinafter "Ms. Graham") with a number of crimes, including driving under the influence of alcohol (general impairment) and driving under the combined influence of alcohol and a drug or combination of drugs. On August 1, 2012, Ms. Graham proceeded to a jury trial, where Zelienople Borough Police Officer Michael Kopp and Ms. Graham testified.
As Officer Kopp testified, at the time of the incident, he was a 16-year veteran of the Zelienople Police Department, had received extensive training and education with respect to recognizing the signs and symptoms of individuals who are "driving under the influence, " extensively observed individuals who were suspected of "driving under the influence, " was trained in performing field sobriety tests "to determine . . . if [an individual is] under the influence of alcohol or drugs, " and, during the course of his career, had performed field sobriety tests "over  times." N.T. Trial, 8/1/12, at 32-42.
Officer Kopp testified that, at approximately 2:00 a.m. on October 1, 2011, he was sitting in his marked police car and was monitoring traffic on West Beaver Street in Zelienople. Id. at 43. As Officer Kopp testified, at this time, he watched as a vehicle slowly drove its right front passenger-side tire off the West Beaver Street road surface and onto the depressed, gravel edge of the roadway. Id. at 47. Officer Kopp testified that the vehicle was traveling noticeably below West Beaver Street's posted 35 mile-per-hour speed limit, that the night was dry and clear, and that nothing in the roadway required any type of evasive action. Id. at 46-47.
Officer Kopp testified that the vehicle immediately reentered the roadway and then slowly drove into a nearby housing community. Id. at 48. The officer testified that, approximately 30 seconds later, he witnessed the vehicle exit the community and slowly continue, in the same direction, along West Beaver Street. Id. According to Officer Kopp, the vehicle then came to a complete stop – in the middle of the road – directly in front of the officer. Id. at 49. The vehicle remained stationary for approximately five to six seconds, after which time it continued along West Beaver Street. Id. at 50. It was at this point that Officer Kopp decided to follow the vehicle to determine if anything was wrong with the operator. Id. at 51.
After witnessing the vehicle fail to completely stop at various stop signs, Officer Kopp activated his emergency lights and effectuated a traffic stop of the vehicle. Id. at 52 and 90. According to Officer Kopp, when he approached the driver's side of the vehicle, he saw the female driver – who was later identified as Ms. Graham – speaking on her cellular telephone "almost like [the officer] wasn't even there." Id. at 53. The officer requested Ms. Graham's paperwork and watched as Ms. Graham "fumbled around" looking for her papers, while she continued to speak on her telephone. Id. at 54. During this time, Officer Kopp observed that Ms. Graham had slurred, slow speech and glassy, bloodshot eyes. Id. at 54-55. Moreover, Officer Kopp testified that he could smell "the odor of an intoxicating beverage" emanating from Ms. Graham. Id. at 56.
Eventually, Officer Kopp requested that Ms. Graham exit her vehicle. The officer testified that Ms. Graham had difficulty exiting the vehicle and that she needed assistance to stand. Id. at 55. Officer Kopp testified that he then administered various field sobriety tests, all of which Ms. Graham failed. Id. at 57.
Officer Kopp testified that he placed Ms. Graham "under arrest for suspicion of driving under the influence of alcohol" and drove Ms. Graham to Ellwood City Hospital for blood alcohol testing. Id. at 60. According to Officer Kopp, when they arrived at the hospital, he requested that Ms. Graham submit a sample of her blood for chemical testing. Officer Kopp testified that Ms. Graham refused to submit to the blood draw. Id. at 63.
Moreover, Officer Kopp testified, Ms. Graham informed him that the reason she did not wish to submit to the blood test was because she had Celexa, HydroPam, and Vistaril "in her system." Id. Officer Kopp testified that Ms. Graham told him that she had a valid prescription for all three medications. Id. at 80-81.
Towards the end of Officer Kopp's testimony, Officer Kopp testified:
Q:  Officer, based on your education and your experience and your training, do you have an opinion as to whether or not [Ms. Graham] was under the influence of alcohol and/or a combination of alcohol and/or drugs?
A: I do believe she was under the influence ...