Com. v. Wall, A.

• Court: Superior Court of Pennsylvania
• Decided: March 3, 2025
• Docket: 266 EDA 2024
• Status: Unpublished

Opinion

J-S47018-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : AKEEM RASHAD WALL : : Appellant : No. 266 EDA 2024

Appeal from the Judgment of Sentence Entered August 17, 2023 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0003480-2022

BEFORE: KUNSELMAN, J., SULLIVAN, J., and BECK, J.

MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 3, 2025

Akeem Rashad Wall appeals from the judgment of sentence entered

after he was convicted of driving under the influence (DUI) of a controlled

substance as a second offense. See 75 Pa.C.S. § 3802(d)(1)(i). He

challenges the denial of his motion to suppress evidence, the grant of the

Commonwealth’s motion to amend the bills of information, and the sufficiency

and weight of the evidence. We affirm.

Following a traffic stop on March 10, 2021, Trooper Christopher Poulsen

of the Pennsylvania State Police charged Wall with, among other crimes, DUI

under subsection 3802(d)(1)(i). At a preliminary hearing on June 21, 2022,

Wall waived for court a lesser-graded, first-offense DUI charge, 75 Pa.C.S.

§ 3802(a)(1), and the prosecution withdrew the other charges. Thereafter,

on January 27, 2023, the Commonwealth filed bills of information listing only

one charge, DUI under subsection 3802(a)(1). J-S47018-24

On March 10, 2023, Wall filed an omnibus pre-trial motion consisting of

a generic motion to suppress, in which he alleged twenty-four reasons the

evidence against him was obtained illegally. On May 17, 2023, the trial court

scheduled the case for a suppression hearing and trial to begin on May 30,

2023. On May 26, 2023, four days before the scheduled hearing, the

Commonwealth moved to amend the bills of information, seeking to add back

the original controlled-substance DUI charge under subsection 3802(d)(1)(i).

The trial court heard both the Commonwealth’s motion to amend the

bills of information and Wall’s suppression motion on May 30, 2023. The

Assistant District Attorney (ADA) stated that Wall had been on notice of the

controlled-substance DUI offense throughout the case. Wall explained that

Trooper Poulsen had substituted the DUI charges at the preliminary hearing

to provide for a plea deal that Wall ultimately refused. Wall did not allege

prejudice and acknowledged that “given the facts of the case, the lesser

charge is not proveable.” N.T., Suppression, 5/30/23, at 5–6. The trial court

granted the Commonwealth’s motion to amend the bills of information.

Regarding suppression, Wall alleged at the hearing that his arrest was

not supported by probable cause. The Commonwealth presented Trooper

Poulsen’s testimony and admitted a video recording of the traffic stop in this

case. The trial court articulated its findings of fact on the record:

Trooper Christopher Poulsen is a patrol trooper with the Pennsylvania State Police assigned to Skippack Barracks. He is responsible for traffic enforcement, among other things, and he is a ten-and-a-half-year veteran of the department.

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He has experience in conducting traffic stops, over a thousand car stops, and over two hundred DUI investigations. Poulsen has been trained in all aspects of driving under the influence of alcohol and controlled substances.

On March 10th of 2021, Trooper Poulsen was on duty, on 422, [when] a car drove by him[. H]e ran the tag for the vehicle, and found that it was an improperly registered tag for the vehicle. He also found what he called a “dead tag,” meaning not a valid tag for the Commonwealth of Pennsylvania.

He stopped the vehicle. He conducted a traffic stop . . . . He requested the driver provide a license, registration, and insurance for the vehicle. Trooper Poulsen identified the defendant, Akeem Wall, as the driver of the vehicle. The driver provided . . . a DUI suspended license. He had no registration for the vehicle.

Poulsen requested the defendant get out of the car. Trooper Poulsen noticed the odor of burnt marijuana coming from the vehicle and/or the defendant. Once the defendant removed himself from the car, he was argumentative as he spoke to the trooper. His speech was slow and sluggish and somewhat slurred. Trooper Poulsen noticed bloodshot eyes and, again, the odor of burnt marijuana.

At that point Trooper Poulsen believed that the defendant was under the influence of marijuana. Trooper Poulsen conducted field sobriety tests, which are generally meant to yield clues with respect to drugs and alcohol. However, he did say he is unaware of the particular clues to be gained if someone is under the influence of marijuana.

The defendant acknowledged or admitted to Trooper Poulsen that he had smoked marijuana that day, approximately four hours earlier. Trooper Poulsen believed reasonably that the defendant was under the influence of marijuana. He placed the defendant under arrest, transported him to the station, read his implied consent warnings. . . .

. . . [T]he Court finds Trooper Poulsen to be credible and worthy of belief.

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N.T., Suppression, 5/30/23, at 32–34. The trial court concluded that Trooper

Poulsen had probable cause to arrest Wall. Accordingly, the court denied

Wall’s motion to suppress evidence.

The case proceeded to a jury trial on May 31, 2023. The Commonwealth

presented testimony from Trooper Poulsen, who described Wall’s signs of

impairment in the traffic stop and field tests. Trooper Poulsen testified that

he smelled marijuana and that Wall said that he had smoked marijuana

approximately four hours prior to the stop. The Commonwealth presented the

video recording of the stop. Trooper Poulsen described the process of securing

a blood draw from Wall.

At trial, the parties stipulated to the blood draw results, which indicated

three THC compounds in Wall’s blood. The ADA announced the stipulation:

Donna Papsun prepared a report for [the blood draw in this case], which is marked and admissible as C-4. The blood sample Donna Papsun received and examined [is] noted in this report. She determined, after examination, that at the time of the blood draw, this sample contained 1.9, plus or minus, .4 nanograms per [milliliter] of eleven Hydroxy Delta-9 THC, an active metabolite of marijuana; 26, plus or minus five nanograms per [milliliter] of Delta-9 Carboxy THC, an inactive metabolite of marijuana; and 2.6, plus or minus, point six grams of Delta-9 THC, an active metabolite of marijuana.

Donna Papsun holds this opinion or conclusion within a reasonable degree of professional certainty.

N.T., Jury Trial, 5/31/23, at 103–04. The toxicology report was admitted into

evidence, indicating that the stipulated quantities of 11-Hydroxy Delta-9 THC,

Delta-9 Carboxy-THC, and Delta-9 THC were in the blood sample provided.

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The Commonwealth also presented testimony from Trooper Sean

Flannery, who was qualified as an expert in drug recognition. Trooper

Flannery testified that he responded to the scene of the traffic stop at 10:40

a.m. and evaluated Wall. According to Trooper Flannery, Wall told him he had

used marijuana at approximately 7:00 a.m. Trooper Flannery described Wall’s

physical signs of marijuana use and indicia of impairment on additional tests.

Trooper Flannery concluded that Wall was impaired by cannabis, which is

composed of marijuana, an opinion he held within a reasonable degree of

professional certainty.

On June 1, 2023, after a full day of deliberation, the jury returned a

verdict of guilty. On August 17, 2023, the trial court sentenced Wall to a term

of imprisonment of 3 to 23 months, followed by one year of probation.

Wall filed timely post-sentence motions, including a motion for a new

trial based on a claim that the verdict was against the weight of the evidence.

He provided two reasons in support: “There is no evidence that Mr. Wall was

impaired while operating a vehicle.” “There is no evidence that the result of

Mr. Wall’s blood work came from a [Schedule] I controlled substance under

the statute as opposed to a legal substance such as hemp.” Post-Sentence

Motion, 8/24/23, at 3. The trial court denied Wall’s post-sentence motions on

December 8, 2023.

Wall timely appealed. Wall and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925. On Wall’s motion, this Court

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remanded to allow Wall to file an amended Rule 1925(b) statement. Wall and

the trial court again complied with Rule 1925.

Wall presents four issues for review, which we have reordered for ease

of disposition:

1. Whether the suppression court erred in denying [Wall’s] motion to suppress?

2. Whether the trial court erred in granting the Commonwealth’s motion to amend the bills of information?

3. Was the evidence presented insufficient to prove beyond a reasonable doubt that [Wall] had committed the crime of [DUI] of a controlled substance in violation of 75 Pa.C.S. § 3802(d)(1)(i)?

4. Whether the trial court erred and abused its discretion when it denied [Wall’s] motion for a new trial based on the weight of the evidence?

Wall’s Brief at 10 (reordered, capitalization omitted).

Wall first challenges the denial of his motion to suppress evidence. He

argues that his arrest was based on speculation. Specifically, Trooper Poulsen

relied only on the smell of marijuana, Wall’s ambiguous statement, and field

tests that Trooper Poulsen could not associate with marijuana use.

In reviewing the denial of a motion to suppress, this Court considers the

evidence from the suppression hearing to determine whether the record

supports the suppression court’s factual findings and whether the legal

conclusions drawn from those facts are correct. Commonwealth v. Smith,

164 A.3d 1255, 1257 (Pa. Super. 2017). Our review of legal conclusions is de

novo. Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016).

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Probable cause to arrest depends on the totality of the circumstances.

Commonwealth v. Salter, 121 A.3d 987, 995 (Pa. Super. 2015). “Probable

cause to arrest exists when the facts and circumstances within the police

officer’s knowledge and of which the officer has reasonably trustworthy

information are sufficient in themselves to warrant a person of reasonable

caution in the belief that an offense has been committed by the person to be

arrested.” Commonwealth v. Burno, 154 A.3d 764, 781 (Pa. 2017) (citation

and internal quotation marks omitted). The relevant inquiry “is not whether

the officer’s belief was ‘correct or more likely true than false.’” Id. (quoting

Texas v. Brown, 460 U.S. 730, 742 (1983)). Instead, probable cause

requires “only a ‘probability, and not a prima facie showing, of criminal

activity.’” Id. (quoting Illinois v. Gates, 462 U.S. 213, 235 (1983)).

The smell of marijuana, while insufficient to establish probable cause

absent any other facts, remains a factor in the probable-cause analysis.

Commonwealth v. Barr, 266 A.3d 25, 44 (Pa. 2021). Field sobriety tests

“are generally accepted methods for ascertaining alcohol or drug impairment

at the time of a traffic stop.” Salter, 121 A.3d at 996 (emphasis added).

Likewise, a police officer can consider a defendant’s demeanor and physical

signs of intoxication in determining whether there is cause to arrest a

defendant for DUI. Id. at 995 n.9 (citing Commonwealth v. Segida, 985

A.2d 871, 879 (Pa. 2009)).

Here, the record supports the suppression court’s factual findings, and

the facts support Trooper Poulsen’s probable cause determination that Wall

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had committed DUI. The totality of the circumstances includes not just the

smell of marijuana, as in Barr, but also: Wall’s admission to smoking

marijuana four hours prior; Wall’s “slow and sluggish” demeanor, bloodshot

eyes, and slurred speech; and Wall’s performance on the field tests that were

meant to yield clues of impairment caused by drugs or alcohol. These factors

support Trooper Poulsen’s belief that Wall committed DUI by driving with

marijuana in his blood. Cf. Salter, 121 A.3d at 997–98 (holding that an officer

had probable cause to arrest for DUI even if other factors could have caused

the driver’s poor performance on field tests and bloodshot/glassy eyes).

Because Trooper Poulsen had probable cause to arrest Wall for DUI, Wall’s

first issue fails.

Second, Wall challenges the order granting the Commonwealth’s motion

to amend the bills of information after a hearing on the day before trial. Wall

maintains that he had agreed to waive a preliminary hearing in exchange for

the substitution of the lesser-graded subsection 3802(a)(1) DUI charge. He

argues that by allowing the Commonwealth to “add back” the higher-graded

subsection 3802(d)(1)(i) charge, the trial court unjustifiably deprived him of

his preliminary hearing rights. He also claims that this prejudiced him by

forcing him to go to trial the next day on the previously withdrawn charge.

This Court reviews a decision allowing an amendment of a criminal

information for an abuse of discretion. Commonwealth v. Belgrave, 307

A.3d 1240, 1248 (Pa. Super. 2023) (citing Commonwealth v. Small, 741

A.2d 666, 681 (Pa. 1999)). Under Rule 564 of the Pennsylvania Rules of

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Criminal Procedure, a trial court has discretion to allow amendment of the

charging document:

The court may allow an information to be amended, provided that the information as amended does not charge offenses arising from a different set of events and that the amended charges are not so materially different from the original charge that the defendant would be unfairly prejudiced. Upon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice.

Pa.R.Crim.P. 564. This rule “ensure[s] that a defendant is fully apprised of

the charges [and avoids] prejudice by prohibiting the last-minute addition of

alleged criminal acts of which the defendant is uninformed.” Belgrave, 307

A.3d at 1249 (citation omitted). For example, a defendant may be prejudiced

by the addition of a charge shortly before trial that necessitates a change in

defense strategy. E.g., Commonwealth v. Quinones, 200 A.3d 1004, 1014

(Pa. Super. 2018).

Here, the trial court did not abuse its discretion when it allowed the

Commonwealth to reinstate the subsection 3802(d)(1)(i) DUI charge that fit

the facts of the case. The lack of a preliminary hearing, and all rights that

Wall waived with it, “is rendered immaterial” because Wall had those same

rights at trial. See Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super.

1991). By proceeding to trial, Wall effectively exercised his rights to test the

case against him. Furthermore, Wall understood the nature of the charges

from the time they were filed, and he did not request a continuance to adjust

his defense strategy or otherwise argue to the trial court that the amendment

prejudiced him. Thus, the trial court did not abuse its discretion in granting

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the Commonwealth’s motion to “add back” the original DUI charge. Wall’s

second issue fails.

Third, Wall challenges the sufficiency of the evidence to sustain his

conviction for DUI of marijuana, under subsection 3802(d)(1)(i) of the Vehicle

Code. For a sufficiency claim, this Court reviews the trial record to determine

whether all the evidence establishes each challenged element of the offense

beyond a reasonable doubt. Commonwealth v. Franklin, 69 A.3d 719, 722

(Pa. Super. 2013) (citation omitted).

As charged here, DUI requires proof that Wall was driving with any

amount of a Schedule I controlled substance in his blood. Commonwealth

v. Whitmire, 300 A.3d 484, 490 (Pa. Super. 2023); see 75 Pa.C.S.

§ 3802(d)(1)(i). Whether a given substance is included in the statute’s scope

presents a “question of law.” See Commonwealth v. Glenn, 233 A.3d 842,

844 (Pa. Super. 2020). We have consistently held subsection 3802(d)(1)(i)

to prohibit driving with any amount of marijuana in one’s blood. E.g.,

Commonwealth v. Dabney, 274 A.3d 1283, 1291–92 (Pa. Super. 2022).

We have also recognized that Delta-9 THC is “the active compound in

marijuana.” Commonwealth v. Given, 244 A.3d 508, 509 (Pa. Super.

2020); see also Whitmire, 300 A.3d at 490–92 (finding evidence sufficient

where a defendant’s blood contained Delta-9 THC).

Wall bases his argument on the parties’ stipulation that his blood

contained only metabolites of marijuana, not marijuana itself. However, as

our cases have recognized, Delta-9 THC is the active compound in marijuana,

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not a metabolite. Given, 244 A.3d at 509. Despite the prosecutor’s erroneous

description, the jury could find from the evidence, including Ms. Papsun’s

laboratory report, that Wall’s blood contained Delta-9 THC. Thus, there was

sufficient evidence for the jury to find that Wall had a controlled substance in

his blood when he drove. Wall’s third issue fails.

Finally, Wall challenges the denial of his post-sentence motion for a new

trial based on his claim that the verdict was against the weight of the evidence.

A trial court may grant a new trial for a weight claim “only where the verdict

was so contrary to the evidence that it shocks the trial court’s sense of justice.”

Commonwealth v. Champney, 832 A.2d 403 (Pa. Super. 2024) (citations

omitted). On appeal, we determine “whether the trial court abused its

discretion in concluding that the verdict was not against the weight of the

evidence, not whether the verdict, in this Court’s opinion, was against the

weight of the evidence.” Id. We “give the gravest consideration to the

findings and reasons” provided by the trial court, which had the opportunity

to observe the evidence firsthand at trial. Id. (quoting Commonwealth v.

Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014)).

The trial court recounted the overwhelming evidence that Wall drove

with marijuana in his blood: Trooper Poulsen smelled marijuana, Wall’s

demeanor and performance on field tests showed he was under the influence

of marijuana, Wall admitted to smoking marijuana four hours before the stop,

and a stipulated laboratory report confirmed that Wall had Delta-9 THC in his

blood. The court rejected Wall’s assertions that the evidence was deficient:

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There was no testimony presented at trial that [Wall] had a medical marijuana card or was otherwise legally permitted to ingest marijuana. Regardless of whether the marijuana in [Wall’s blood] was medical or “legal,” the current state of the law in Pennsylvania still prohibits [driving with any amount of marijuana, including medical marijuana, in one’s blood. Dabney, 274 A.3d at 1291–92.] There was no testimony presented at trial that the substance found in [Wall’s] blood was a legal substance as opposed to an illicit controlled substance. The evidence was not so one-sided toward acquittal that a guilty verdict shocks one’s sense of justice.

Trial Court Opinion, 7/11/24, at 12–13.

We discern no abuse of discretion. The trial court, which observed the

presentation of evidence at trial, determined that the jury’s verdict was

consistent with the evidence. Notably, neither of Wall’s contentions from his

post-sentence motion requires a different result: proof of actual impairment

is not required under subsection 3802(d)(1)(i), and Wall’s own statement that

he smoked marijuana proves that the Delta-9 THC in his blood was from

marijuana. This issue fails.

Judgment of sentence affirmed.

Date: 3/3/2025

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