Com. v. Macik, T.

J-S10042-24

                                   

  COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
  TONIANNE MACIK                               :
                                               :
                       Appellant               :   No. 529 WDA 2023

        Appeal from the Judgment of Sentence Entered April 12, 2023
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0004707-2022

BEFORE: OLSON, J., KING, J., and LANE, J.

OPINION BY LANE, J.:                                      FILED: July 1, 2024

       Tonianne Macik (“Macik”) appeals from the judgment of sentence

imposed following her convictions for driving under the influence (“DUI”)-

controlled    substance     or    metabolite   (second   offense),   DUI-controlled

substance-impaired ability (second offense), and careless driving. 1         Macik

claims that the evidence was insufficient to support her convictions because

the Commonwealth did not prove her mens rea. We hold: (1) the General

Assembly’s legislative purpose to impose absolute liability in subsections

3802(d)(1) and (2) of the Motor Vehicle Code is evident from the minimal

term of imprisonment required for a conviction; (2) subsection 3802(d)(1)

and (2) offenses do not require proof of mens rea; and (3) the

Commonwealth’s evidence was sufficient to establish that Macik was under



____________________________________________


1 See 75 Pa.C.S.A. §§ 3802(d)(1), (2), 3714(a).
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the influence of drugs that caused her unsafe and impaired driving supporting

her convictions. We affirm.

      The trial court summarized the relevant facts underlying Macik’s

convictions as follows:

             Around 1:00 p.m. on May 5, 2022, Officer Michael Kriebel
      [(“Officer Kriebel”)] was on patrol in Shaler Township when he
      was dispatched to the scene of a two-vehicle accident on Babcock
      Boulevard. [Macik,] [t]he operator of one of the vehicles, . . .
      [who veered into oncoming traffic and caused the accident], . . .
      was crouched down by the curb and was crying. Officer Kriebel
      described [Macik]’s demeanor as borderline hysterical and very
      elevated. She appeared to be uninjured and told officers that she
      did not require medical attention from on-scene medics. While
      interacting with [Macik] he noted that she would calm down very
      briefly and the[n] immediately elevate back up while on her cell
      phone yelling at whomever she was speaking with . . .. After
      consulting with his Police Chief, Officer Kriebel decided that
      because [Macik] had no ride home from the scene and the
      concerns for her manner and the way she was acting, he would
      take [Macik] to the Shaler Township Police Station and figure out
      transportation for her. . . . Before being transported[,] he asked
      [Macik] if she had any drugs on her and she stated that she didn’t
      have any as “they took them from me last night[.”] During the
      ride to the station[,] [Macik] was going in and out, falling asleep
      and waking up. At one point Officer Kriebel had to call out to her
      to make sure that she was still conscious as she slumped over in
      the back seat. . . . Once they arrived at the station [Macik] told
      him that she was arrested for a DUI the previous night in
      Punxsutawney, Pennsylvania by the Pennsylvania State Police.
      She said that after her car was released, she drove back to the
      location where she was involved in the accident. [Officer] Kriebel
      was of the opinion that [Macik] was impaired and had operated
      her motor vehicle while under the influence[,] and contacted a
      drug recognition expert ([“]DRE[”]) to assess [Macik] and
      determine what type of substance might be the basis of her
      impairment. After the DRE completed the assessment, [Macik]
      was transported to the hospital where she consented to a blood
      draw. [The results of the blood test showed that Macik’s blood
      contained     amphetamines,      a   Schedule    IV   drug,     and


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J-S10042-24


       benzodiazepines, and methamphetamines, both Schedule II
       drugs.]

Trial Court Opinion, 6/16/23, at 3-4 (internal citations and footnote omitted).

       On April 12, 2023, following a non-jury trial, the trial court found Macik

guilty of the aforementioned offenses after hearing the stipulated evidence. 2

The trial court sentenced Macik the same day to ninety days to five years’

incarceration.3 Macik did not file a post-sentence motion. The instant, timely

appeal followed. Both Macik and the trial court complied with Pa.R.A.P. 1925.

       On appeal, Macik raises the following issue for our review:

       Was . . . Macik erroneously convicted of violating 75 Pa.C.S.[A.] §
       3802(d)(1) and 75 Pa.C.S.[A.] § 3802(d)(2), given that, with
       respect to each conviction, the Commonwealth’s evidence failed
       to establish that she acted with the mens rea required to commit
       those crimes?

Macik’s Brief at 3.4

       Macik argues the evidence was insufficient to support her convictions.

Our standard of review of a sufficiency challenge is well settled:

____________________________________________


2 Macik and the Commonwealth agreed to enter the following evidence at the

stipulated non-jury trial: (1) the affidavit of probable cause written by Officer
Kriebel; (2) Pennsylvania Department of Transportation Form DL-26 showing
that Macik consented to a blood withdrawal for chemical testing; and (3) a
report from the Allegheny County Medical Examiner’s Office showing that on
May 5, 2022, Macik’s blood contained amphetamines, a Schedule IV drug, and
benzodiazepines, and methamphetamines, both Schedule II drugs.

3 The trial court imposed a mandatory minimum sentence of ninety days to

five years’ incarceration, as this was Macik’s second offense for DUI within ten
years. See 75 Pa.C.S.A. § 3804(c)(2).

4 Macik does not challenge her conviction for careless driving; therefore, we

do not address it herein.

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       The standard we apply . . . is whether viewing all the evidence
       admitted at trial in the light most favorable to the verdict winner,
       there is sufficient evidence to enable the fact-finder to find every
       element of the crime beyond a reasonable doubt. In applying the
       above test, we may not weigh the evidence and substitute our
       judgment for the fact-finder. In addition, we note that the facts
       and circumstances established by the Commonwealth need not
       preclude every possibility of innocence. Any doubts regarding a
       defendant’s guilt may be resolved by the fact-finder unless the
       evidence is so weak and inconclusive that as a matter of law no
       probability of fact may be drawn from the combined
       circumstances. The Commonwealth may sustain its burden of
       proving every element of the crime beyond a reasonable doubt by
       means of wholly circumstantial evidence. Moreover, in applying
       the above test, the entire record must be evaluated, and all
       evidence actually received must be considered. Finally, the trier
       of fact while passing upon the credibility of witnesses and the
       weight of the evidence produced, is free to believe all, part or none
       of the evidence.

Commonwealth v. Edwards, 

, 305–06 (Pa. Super. 2020)

(brackets and citations omitted).

       With respect to DUI offenses involving controlled substances, the Motor

Vehicle code provides as follows:

       (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 [CSA]5;

          (ii) Schedule II or Schedule III controlled substance, as defined
          in [the CSA], which has not been medically prescribed for the
          individual; or
____________________________________________


5 See 35 P.S. § 108-104.


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J-S10042-24



         (iii) metabolite of a substance under subparagraph (i) or (ii).

      (2) The individual is under the influence of a drug or combination
      of drugs to a degree which impairs the individual’s ability to safely
      drive, operate or be in actual physical control of the movement of
      the vehicle.

75 Pa.C.S.A. § 3802(d)(1), (2).

      As our Supreme Court has observed, “subsection 3802(d)(1) prohibits

one from driving if there is any amount of a Schedule I controlled substance,

any amount of a Schedule II or Schedule III controlled substance that has not

been medically prescribed for the individual, or any amount of a metabolite

of a controlled substance in one’s blood.” Commonwealth v. Griffith, 

 (Pa. 2011); see also Commonwealth v. Etchison, 

 (Pa. Super. 2007). Thus, for the Commonwealth to meet its

burden of proof under subsection 3802(d)(1), it need only prove: (1) that the

defendant was in actual physical control or operated the motor vehicle; and

(2) that he or she had a Schedule I, II, or III controlled substance or a

metabolite of a controlled substance in his or her blood. See Commonwealth

v.   Whitmire,    

   (Pa.   Super.   2023);    see     also

Commonwealth v. May, 

 (Pa. Super. 2022). There is no

requirement under subsection 3802(d)(1) that the Commonwealth establish

the defendant was impaired while driving. See Whitmire, 

;

see also May, 

.




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J-S10042-24


       With respect to section 3802(d)(2), the Commonwealth must simply

prove that, while driving or operating a vehicle, the accused was under the

influence of a drug or combination of drugs to a degree that impaired his or

her ability to safely drive that vehicle. See Commonwealth v. Williamson,

 (Pa. Super. 2008). Evidence of such impairment should

be drawn from the totality of the factual circumstances. See Commonwealth

v. Spence, 

 (Pa. Super. 2023). Sufficient evidence has

been found through combinations of police officer observations, witness

testimony to unsafe driving, and blood tests showing drugs in the driver’s

system. See Griffith, 

.

       Here, Macik does not dispute that there were Schedule II and Schedule

IV drugs in her blood, and that she was incapable of driving safely while under

the influence of these drugs, in violation of subsections 3802(d)(1) and

3802(d)(2).     Indeed, she stipulated to these facts at trial.   Instead, she

devotes the entirety of her argument to a claim that, because neither

subsection 3802(d)(1) nor 3802(d)(2) contains a mens rea element, and the

legislature did not specifically indicate that it intended subsection 3802(d) to

impose absolute liability, this Court should impute a mens rea element into

the statute pursuant to 18 Pa.C.S.A. § 302.6      Macik points out that strict

____________________________________________


6 Section 302 provides the default level of culpability where a criminal statute

does not include an express mens rea. Under the default provision of section
302(c), “[w]hen the culpability sufficient to establish a material element of an
(Footnote Continued Next Page)


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J-S10042-24


liability statutes are disfavored in the law, and that this Court should not

interpret subsections 3802(d)(1) and 3802(d)(2) as imposing absolute

liability. Macik urges this Court to apply the default mens rea of “recklessness”

provided in the Crimes Code, see 18 Pa.C.S.A. § 302(b)(3), to the subject

provisions of the Motor Vehicle Code. On this basis, Macik claims that the

evidence     was    insufficient    to   support   her   convictions   because   the

Commonwealth failed to prove that she: (1) was aware of, and disregarded,

the substantial risk that the drugs she consumed on 

, would

remain in her bloodstream on 

; and (2) was aware of, and

disregarded, the substantial risk that the drugs she consumed on 

,

would impair her ability to safely drive on 

.

       Macik’s claims implicate the proper interpretation of subsections

3802(d)(1) and 3802(d)(2). In this regard, our standard of review is well-

settled:

       Statutory interpretation is a question of law, therefore our
       standard of review is de novo, and our scope of review is plenary.
       “In all matters involving statutory interpretation, we apply the
       Statutory Construction Act, 1 Pa.C.S.A § 1501 et seq., which
       provides that the object of interpretation and construction of
       statutes is to ascertain and effectuate the intention of the General
       Assembly.”

       Generally, a statute’s plain language provides the best indication
       of legislative intent. We will only look beyond the plain language
       of the statute when words are unclear or ambiguous, or the plain
____________________________________________


offense is not prescribed by law, such element is established if a person acts
intentionally, knowingly or recklessly with respect thereto.” 18 Pa.C.S.A. §
302(c).

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J-S10042-24


       meaning would lead to “a result that is absurd, impossible of
       execution or unreasonable.” 1 Pa.C.S.A § 1922(1). Therefore,
       when ascertaining the meaning of a statute, if the language is
       clear, we give the words their plain and ordinary meaning.

Commonwealth v. Torres–Kuilan, 

 (Pa. Super. 2017)

(some citations omitted).

       When the General Assembly plainly indicates a legislative purpose to

impose absolute liability, pursuant to 18 Pa.C.S.A. § 305(a)(2),7 the

Commonwealth does not have to establish a mens rea element in order to

convict a defendant of a crime.

       [However,] as a general principle, absolute criminal liability
       statutes are an exception to the centuries old philosophy of
       criminal law that imposed criminal responsibility only for an act
       coupled with moral culpability. A criminal statute that imposes
       absolute liability typically involves regulation of traffic or liquor
       laws. Such so-called statutory crimes are in reality an attempt to
       utilize the machinery of criminal administration as an enforcing
       arm for social regulation of a purely civil nature, with the
       punishment totally unrelated to questions of moral wrongdoing or
       guilt. Along these same lines, an additional factor to consider
       when determining if the legislature intended to eliminate the mens
       rea requirement from a criminal statute is whether the statute
       imposes serious penalties. The more serious the penalty, such as
       a lengthy term of imprisonment, the more likely it is the
       legislature did not intend to eliminate the mens rea requirement
       (unless the legislature plainly indicates otherwise in the language
       of the statute, as for statutory rape).
____________________________________________


7 Section 305(a)(2) addresses situations wherein culpability requirements are

inapplicable to summary offenses and to offenses defined by other statutes,
and provides: “[t]he requirements of culpability prescribed by section 301 of
this title (relating to requirement of voluntary act) and section 302 of this title
(relating to general requirements of culpability) do not apply to: . . . (2)
offenses defined by statutes other than this title, in so far as a legislative
purpose to impose absolute liability for such offenses or with respect to any
material element thereof plainly appears. 18 Pa.C.S.A. § 305(a)(2)

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J-S10042-24



Commonwealth v. Pond, 

 (Pa. Super. 2004) (citations,

quotations, and quotation marks omitted).

       Here, although the General Assembly did not indicate a legislative

purpose to impose absolute liability, it is evident from the minimal term of

imprisonment required following a subsection 3802(d) conviction that the

legislature intended subsection 3802(d) of the DUI statute to impose strict

liability that does not require proof of mens rea.       Macik was convicted of

violating subsections 3802(d)(1) and 3802(d)(2). For a first offense of these

traffic-related crimes, a person is subject to a mandatory minimum term of

seventy-two hours in prison and a maximum term of six months in prison.

See 75 Pa.C.S.A. § 3804(c)(1); see also 75 Pa.C.S.A. § 3803(b)(2).8 The

nature of these offenses, i.e., traffic -related violations, as well as the minimal

possible term of imprisonment resulting from a conviction, provide sufficient

indicia that the legislature intended to eliminate the mens rea element and

make operating a vehicle after consuming certain specified drugs, or

combinations of drugs, a strict liability crime.



____________________________________________


8 The penalties for these traffic-related offenses increase based only upon prior

convictions. If the defendant has one prior conviction for DUI, they are subject
to a mandatory minimum of ninety days in prison and a maximum penalty of
five years in prison. See 75 Pa.C.S.A. § 3804(c)(2); see also 75 Pa.C.S.A. §
3803(b)(4). A third or subsequent DUI offense increases that mandatory
minimum to one year in prison. See 75 Pa.C.S.A. § 3804(c)(3). Here,
because Macik had a prior DUI conviction, she was subject to increased
penalties.

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J-S10042-24


       Moreover, this Court has previously determined that section 3802(d)(1)

is a strict liability statute. See Commonwealth v. Karner, 

(Pa. Super. 2018) (explaining that “[subsection] 3802(d)(1)(iii), concerning

metabolite in the blood, is a strict liability offense per se and does not have a

mens rea of recklessness or gross negligence”); see also Commonwealth

v. Reisinger, 

 n.4 (Pa. Super. 2021) (unpublished memorandum)

(noting that DUI is a strict or absolute liability offense which does not require

the establishment of culpability);9 Commonwealth v. Bell, 

(Pa. Super. 2020) (unpublished memorandum) (holding that “even though . .

. [subsection] 3802(d), is a strict liability offense, because the applicable

statutes under both the Motor Vehicle Code . . . and the Crimes Code . . .

provide for both the grading of the offense and the maximum penalty to be

imposed, the default provisions of [section] 305 are not applicable”);

Commonwealth v. Collins, 

 (Pa. Super. 2002) (noting

that the prior version of the DUI law under section 3731(a)(2) omitted any

reference to culpability and interpreting this omission to mean that the

legislature intended DUI to be a strict or absolute liability offense).

       Having determined that there is no mens rea element to the subsection

3802(d)(1) and (2) offenses for which Macik was convicted, we conclude that

her sufficiency claims must necessarily fail. With respect to her conviction for


____________________________________________


9 See Pa.R.A.P. 126(b) (stating we may rely on unpublished decisions of this

Court filed after 

, for their persuasive value).

                                          - 10 -
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subsection 3802(d)(1), it prohibits operation of a vehicle if there is any

amount of Schedule I, II, or III controlled substance or metabolite of a

controlled substance, that has not been medically prescribed, in the

individual’s blood.   See Griffith, 283 A.3d at 1239. At the non-jury trial,

Macik stipulated to the affidavit of probable cause prepared by Officer Kriebel,

which established that she had been operating her vehicle on 

.

See Affidavit of Probable Cause, 5/6/22, at 2. Macik further stipulated to the

report from the Allegheny County Medical Examiner’s Office establishing that

on 

, her blood contained amphetamines, a Schedule IV drug, and

benzodiazepines, and methamphetamines, both Schedule II drugs.             See

Report, 6/9/22, at 2-3. Thus, as the uncontested evidence admitted at trial

established that Macik operated her vehicle while she had a Schedule II

controlled substance in her blood, we conclude that the evidence was sufficient

to support her conviction for DUI pursuant to section 3802(d)(1)(ii).

      With respect to subsection 3802(d)(2), as explained above, the

Commonwealth must prove that, while driving or operating a vehicle, the

accused was under the influence of a drug or combination of drugs to a degree

that impaired his or her ability to safely drive that vehicle. See Williamson,

. Here, Macik stipulated to evidence which established that

she operated her vehicle while she had amphetamines, a Schedule IV drug,

and benzodiazepines, and methamphetamines, both Schedule II drugs in her

blood. See Report, 6/9/22, at 2-3. Moreover, in his uncontested affidavit of


                                     - 11 -
J-S10042-24


probable cause, Officer Kriebel noted that Macik had veered her vehicle into

oncoming traffic, crossing a double-yellow line, causing the subject accident.

See Affidavit of Probable Cause, 5/6/22, at 2. The officer indicated that Macik

was “visibly shaken and . . . crying,” and “could not remember what

happened.” 

 Macik told the officer that she had been arrested for DUI the

prior evening and that police had taken all her drugs from her “last night.”

   As Officer Kriebel continued to question Macik, her “response time to

questions had grown longer and she began to look at her phone with a distant

gaze . . . as if not to be understanding what she was looking at.” 

 Officer

Kriebel discussed his observations of Macik’s behavior with his police chief,

who agreed that they should contact a drug recognition expert to determine

if Macik was still impaired by the drugs she had ingested the night before. 

Officer Kriebel then contacted Sergeant Wolfson, who performed drug

recognition testing on Macik and concluded that she was still under the

influence of drugs to a degree that would impair her ability to operate a motor

vehicle.   

   Viewing this evidence in the light most favorable to the

Commonwealth, we conclude that the stipulated evidence admitted at trial

was sufficient to establish that, while operating a vehicle, Macik was under the

influence of a drug or combination of drugs to a degree which impaired her

ability to safely drive that vehicle.         See Griffith, 

.

Accordingly, her sufficiency challenge merits no relief.

      Judgment of sentence affirmed.


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J-S10042-24




DATE: 07/01/2024




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