Commonwealth v. Duncan

314 A.3d 556

COMMONWEALTH of Pennsylvania

v.Heather A. DUNCAN, Appellant

No. 1103 EDA 2023

Superior Court of Pennsylvania.

Argued February 8, 2024

Filed April 17, 2024

Appeal from the Judgment of Sentence Entered April 10, 2023, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0007608-2021, Christopher R. Hall, J.

Samuel C. Stretton, West Chester, for appellant.

Lawrence J. Goode, District Attorney’s Office, Philadelphia, for Commonwealth, appellee.

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.^*

OPINION BY COLINS, J.:

Appellant, Heather A. Duncan, appeals the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County after she was found guilty of driving while under the combined influence of alcohol and a drug or a combination of drugs following a non-jury trial.¹ She challenges the sufficiency and weight of the evidence, the lower court’s grant of a Commonwealth request to amend the charge during trial, and the trial court’s admission of evidence concerning a cigarette that the police never confiscated from the floor of her car. After careful review, we vacate Appellant’s conviction.

Appellant’s case was held over for trial on a single charge for driving under the influence ("DUI") of alcohol/general impairment.² Trial Disposition and Dismissal Form, 8/30/21, 1; Bill of Information, printed 9/1/21, 1. On June 28, 2022, she waived a jury and proceeded to be tried at a bifurcated bench trial. N.T. 6/28/22, 4-5. The Commonwealth’s evidence consisted of testimony from Police Officer Veronika Tueros, footage from a body camera worn by Officer Tueros, and a copy of a First Judicial District secure court summary for Appellant. The defense evidence included testimony from Appellant and her doctor, and stipulated testimony from Appellant’s father.³

At 4:45 p.m. on May 20, 2021, Officer Tueros was on bike patrol duty with two partners in the 700 block of East Clearfield Street in Philadelphia when she heard yelling and honking at a car that was stopped at the intersection with Ridge Street with cars behind it as the traffic signal was green. N.T. 11/2/22, 35-36. She saw Appellant gripping the steering wheel while "having a blank stare straight forward." Id. at 36. After initially signaling with her hand to direct Appellant to move forward, Officer Tueros directed Appellant to put the car in park, turn it off, and exit the car. Id. at 37-38. Appellant was unable to comply with multiple commands to unlock the car. Id. at 38-39. Another officer, Officer Lopez, reached over a window and unlocked the car. Id. at 39.

Officer Tueros asked Appellant to come out of the car, but she remained still with a confused look. N.T. 11/2/22, 40. Officer Tueros saw that Appellant’s eyes were red and "went from a wide eyes [sic] to squinty eyes." Id. at 43. The officers then helped her out of the car. Id. at 39-41. On the floor of the car, Officer Tueros saw a cigarette of which "half to the end of [it] was wet:"

314 A.3d 559.bmp

Commonwealth Exhibit C-1, Officer Tueros’s Body Worn Camera Footage, 5:06 (File "700_E_CLEARFIELD_ST_-_DUI-2"); N.T. 11/2/22, 42, 45-46, 53-54. Appellant had slurred speech when the officers were asking her for her name. Id. at 43. The officers were able to identify her after they retrieved her identification card from a purse in the car. Id. at 44.

When the Commonwealth asked Officer Tueros at trial about the significance of the cigarette being wet, Appellant’s counsel objected on the basis of spoliation because the police officers did not preserve the cigarette. N.T. 11/2/22, 45 (Defense counsel: "They did not preserve the cigerrretee [sic] they destroyed it … This is what you call spoliation."). The court permitted the officer to testify, over defense objections that the wetness of the cigarette was indicative of the presence of PCP, which the officer based on her experiences with drug arrests in the Kensington area of Philadelphia which the officer noted was an area with "very high illegal narcotic sales." Id. at 47-49. The court rejected defense objections to the evidence as speculative and irrelevant, and rejected a related mistrial request:

Q. So in your experience, officer, have you ever encountered in your routine patrol or active duty, cigerettes [sic] in which a portion of the cigerrette [sic] is wet?

[DEFENSE COUNSEL]: Objection, pure speculation.

THE COURT: He hasn’t asked her to speculate. He just asked. Overruled. Go ahead.

[DEFENSE COUNSEL]: And irrelevant.

THE COURT: Overruled.

Q. So, being on the force, have you encountered cigerretes [sic] in which portions of the ciggerette [sic] were wet?

A. Yes.

Q. And what, if anything, what do you make of ciggerettes [sic] that are wet? A. They are dangerous. Well I concluded that it is PCP --

[DEFENSE COUNSEL]: Objection. Move for a mistrial.

THE COURT: Well, there is no ground for that. It’s overruled. Continue.

THE WITNESS: I immediately concluded that it’s alleged PCP based on what I have seen during patrol, what I have seen during arrests.

[DEFENSE COUNSEL]: Note my objection.

Id. at 48-49; see also id. at 71 (additional motion to exclude any reference to the cigarette following Officer Tueros’ testimony). Officer Tueros described the non-filtered part of the cigarette as brown and noted that she separately found a smoking "vape" in the car. Id. at 50, 66.

No field sobriety tests were conducted at the scene prior to the police taking Appellant into custody. N.T. 11/2/22, 55-56. Officer Tueros testified that she did not retrieve the observed "wet" cigarette out of concern for her safety. Id. at 57 ("I did not for my safety."); see also id. at 71 ("Due to safety reasons. I was told not to touch PCP, alledged [sic]."). For the same reason, she confirmed that her fellow officers at the scene did not preserve the cigarette as evidence. Id. ("Q. Did you have one of your colleagues retrieve it or get a jar or a glove and preserve the evidence? A. They did not, for their safety."). Officer Tueros testified that she moved Appellant’s car to a parking spot on the street and left the observed cigarette "in place." Id. at 60. The Commonwealth’s evidence did not address any blood or chemical testing in connection with Appellant’s arrest.

Appellant testified that she had a "[a] complete thyroidectomy" six days before her arrest. N.T. 6/28/22, 7-8. She also alleged that on the day before the arrest she "was having side effects from the surgery" which included an inability to move her legs, a lack of feeling in her legs, and "some tingling in [her] body." Id. at 9. Afterwards, she went to have blood drawn at a division of Pennsylvania Hospital. Id. at 10. On the day of the arrest, Appellant went to Pennsylvania Hospital to see an orthopedist and receive a COVID-19 vaccination; she produced documentation reflecting that she was parked at the hospital from 10:51 a.m. to 12:55 p.m., instructions concerning the vaccine, and a vaccination card. Id. at 12-13.

Appellant testified that, after leaving the hospital garage, she went to a birthday lunch for her sister at a restaurant in the Secane area of Delaware County. N.T. 6/28/22, 13-14. She admitted to having "about half of one" bottle of beer at that party. Id. at 15. She also alleged that she had been put on a calcium regimen at that time because her medical testing proved that she "had pretty severe hypocalcemia." Id. at 16. She recalled that she left the restaurant "somewhere around 3:45" p.m. Id. at 18. From there, Appellant drove to a dollar store on Allegheny Avenue in the Port Richmond section of Philadelphia. Id. at 19. She also testified about wanting to retrieve tools that she had lent to a friend that lived "a block away on Silver Street" before she intended to return to her home in South Philadelphia. Id. at 19-20. She recalled driving to the area of her arrest on the way from the visit to the dollar store to retrieve her tools. Id. at 20, 36. She denied drinking any alcohol, other than what she drank at her sister’s birthday lunch, and denied taking any drugs other than prescription drugs on the day at issue (as to her prescriptions, she referred to her "thyroid medication" and "acid reflux pills" and her doctor recalled prescribing her calcium and Vitamin D supplements). Id. at 20-21, 23; N.T. 11/2/22, 20.

As to the police encounter, Appellant recalled "coming to the red light there," feeling "really funny … like a crazy feeling in the pit of [her] stomach," and experiencing her face tingling. N.T. 6/28/22, 21. She agreed that she remembered the officer telling her to pull her car over and put it in park, but she asserted that her next memory after that was her being in the back of a police wagon. Id. She also agreed that she had a vape on her person and used it to smoke nicotine. Id. at 22-23 ("I mean I wasn’t supposed to be because I wasn’t supposed to be smoking at all, but I did have a vape on me and lightly smoking it because of the surgical procedure.").

Counsel stipulated that Appellant’s father would testify that: he was at the birthday lunch with Appellant; Appellant seemed "not normal" then; she "ate something, not much;" she had "the affects of her operation, the bandages;" he observed her order a bottle of beer, "of which she drank some of it;" she left the restaurant to go back to Philadelphia at around 3:45 p.m.; and that "although she was acting oddly, [Appellant] wasn’t under the influence of anything [and] wasn’t drinking." N.T. 6/28/22, 37-38.

Appellant also presented testimony from an endocrinologist, Dr. Caroline Kim, who had treated her before and after her thyroidectomy. N.T. 11/2/22, 12, 16, 19-20. Dr, Kim testified that "there [was] an issue of low calcium after that operation" and that Appellant developed hypocalcemia after the surgery. Id. at 18-19. She noted that the more common symptoms of hypocalcemia "would be tingling around [a person’s] fingers, around their mouth, some people have cramping in their legs, [an...