J-S37024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
RITA E. FORBES
Appellant No. 1822 MDA 2016
Appeal from the Judgment of Sentence August 24, 2016 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0008132-2015
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 15, 2017
Rita E. Forbes appeals from the August 24, 2016 judgment of sentence
entered in the York County Court of Common Pleas following her bench-trial
convictions for driving under the influence (“DUI”) of a controlled substance
– general impairment and careless driving.1 We affirm.
The opinion of the Honorable Harry M. Ness set forth a detailed factual
and procedural history, which we adopt and incorporate herein. See Opinion
in Support of Order Pursuant to Pa.R.A.P. 1925(a), 1/6/17, at 1-13
(“1925(a) Op.”). On November 3, 2016, Forbes timely appealed to this
Court.
____________________________________________
1 75 Pa.C.S. § 3802(d)(2) and 3714(a), respectively. J-S37024-17
Forbes raises one issue on appeal: “The trial court erred in admitting
the lack of convergence (LOC) test as it is a variation of the horizontal gaze
nystagmus (HGN) test, which is not admissible, as both tests are used to
gauge the eye’s ability to track an object in order to determine the
possibility of intoxication.”2 Forbes’ Br. at 4.
2 The Commonwealth argues that Forbes waived this challenge on appeal because she did not file a pre-trial motion in limine challenging the LOC evidence under the standard in Frye v. United States, 293 F. 1013 (D.C. App. 1923) or request a Frye hearing. While it is true that Forbes did not file such a motion or request, Forbes objected to admission of the LOC test both pre-trial and when Officer O’Brien testified about the test, arguing that the LOC test was inadmissible because of its similarity to the HGN test. When Forbes objected, the trial court found, without considering expert testimony, that the LOC and HGN tests were not similar and, without further argument, allowed Officer O’Brien to lay a foundation for the LOC test. N.T., 8/24/16, at 4-7, 38-39. While Forbes could have lodged a more specific objection to the LOC evidence, under these circumstances we conclude that Forbes has preserved her challenge pursuant to Pennsylvania Rule of Appellate Procedure 302.
We further note that the Pennsylvania Supreme Court recently amended the comment to Pennsylvania Rule of Criminal Procedure 578, which addresses omnibus pre-trial motions, to state that, effective January 1, 2018, motions in limine “proposing or opposing the admissibility of scientific or expert evidence” should be addressed in an omnibus pretrial motion. In re: Order Revising the Comment to Rule 578 of the Pennsylvania Rules of Criminal Procedure, No. 494 Criminal Procedural Rules Docket (Pa. filed Sep. 21, 2017). The comment notes that “[g]iven the potential complexity when the admissibility of such evidence is challenged, such challenges should be raised in advance of trial as part of the omnibus pretrial motion if possible.” Id. However, the comment also notes that “nothing in this rule precludes such challenges from being raised in a motion in limine when circumstances necessitate it.” Id.
-2- J-S37024-17
Forbes argues that the trial court erred in admitting the results of the
LOC test as substantive evidence. We apply the following standard of review
in such matters:
[T]he admissibility of evidence is a matter addressed to the sound discretion of the trial court and . . . an appellate court may only reverse upon a showing that the trial court abused its discretion. An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law.
Commonwealth v. Cox, 115 A.3d 333, 336 (Pa. Super.) (internal
quotations omitted), app. denied, 124 A.3d 308 (Pa. 2015). Further, if
it is determined that the trial court erred in admitting the evidence, the inquiry becomes whether the appellate court is convinced beyond a reasonable doubt that such error was harmless. Harmless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (internal
citations omitted).
Forbes asserts that the trial court incorrectly determined that the LOC
test is different from the HGN test. Forbes notes that this Court has
determined that the HGN test is novel scientific evidence, the admissibility of
which depends on expert testimony pursuant to Commonwealth v. Topa,
369 A.2d 1277 (Pa. 1977), which adopted the standard announced in Frye
-3- J-S37024-17
v. United States, 293 F. 1013 (D.C. App. 1923). According to Forbes, the
LOC and HGN tests are similar and, as a result, the trial court should have
required the Commonwealth to present evidence that the LOC test has
gained general acceptance in the scientific community. However, we need
not reach this question.
Even if Forbes were correct that the trial court improperly admitted
this evidence, we conclude any error was harmless because the
uncontradicted evidence of guilt was overwhelming.
Section 3802(d)(2) of the Vehicle Code provides:
(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:
...
(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. § 3802(d)(2). A person may be convicted under this subsection
where the Commonwealth proves that person “was under the influence of a
drug to a degree that impairs [the person’s] ability to safely drive[] or
operate a vehicle.” Commonwealth v. Williamson, 962 A.2d 1200, 1204
(Pa.Super. 2008). “Section 3802(d)(2) does not require that any amount or
specific quantity of the drug be proven in order to successfully prosecute
under that section.” Id. (emphasis in original).
-4- J-S37024-17
Here, the record shows that Forbes swerved into a lane of oncoming
traffic, forcing another vehicle off the road to avoid a collision. When Officer
O’Brien made contact with Forbes, she was swaying, nodding off, and
speaking so softly that she could barely be heard. In addition, when Officer
O’Brien re-approached and tried to return Forbes’ license and paperwork to
her, Forbes failed in her effort to grab the documents. Forbes also admitted
to Officer O’Brien that she had taken numerous narcotics, including fentanyl,
Dilaudid, gabapentin, and Zoloft. Further, Forbes failed two other field
sobriety tests and when she attempted to perform the LOC test, Officer
O’Brien terminated the test because he feared that Forbes would fall and
injure herself. While Forbes has well-documented medical issues and
presented an expert witness who concluded that Forbes could safely drive
because she should have built up a tolerance to these medications, the
Commonwealth’s evidence overwhelmingly showed that Forbes was under
the influence of a combination of drugs to a degree that impaired her ability
to safely drive an automobile. Given this overwhelming evidence, any error
in the trial court’s consideration of a possibly inadmissible sobriety test was
harmless.
Judgment of sentence affirmed.
-5- J-S37024-17
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/15/2017
-6- Circulated 10/12/2017 10:00 AM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF NO. CP-67-CR-8132-2015 PENNSYLVANIA
RITA FORBES, Appellant/Defendant
OPINION IN SUPPORT OF ORDER PURSUANT TO Pa.R.A.P. 1925{a)
Appellant, Rita Forbes, by and through her attorney, Anthony J.
Tambourino, Esquire, appeals to the Superior Court of Pennsylvania. On
November 15, 2016, and pursuant to Pa. R.A.P. 1925(b), this Court directed
c-Appellant 0 ~n to file a Concise Statement of Matters Complained of on Appeal. On "I i· ·- ;t>ec~~t,er 5, 2016, the Appellant filed the statement. This Court now issues c... == (/). ~_j
\.fhis _, q:g25(a) ,,._ ::C- Opinion. ~ o::::: .""") 0 L..J __J u
PROCEDURAL HISTORY
Appellant was found guilty in a non-jury trial that occurred on August
24, 2016 of the following: DUI: Controlled Substance - Impaired Ability - l" Offense and Careless Driving. The Appellant filed a Post-Sentence Motion on
September 2, 2016, which was denied on October 6, 2016.
MATTERS COMPLAINED OF ON APPEAL
The Appellant states and raises the following grounds for error on appeal:
1. Whether the trial court erred in denying Appellant's request for a Frye Hearing on the scientific reliability of the lack of convergence (LOC) test as used by police officers to determine whether a motorist may be driving under the influence?
2. Whether the trial court erred in admitting lack of convergence test (LOC) test as it is a variation of the horizontal gaze nystagmus (HGN) test, which is not admissible, as both tests are used to gauge the eye's ability to track an object in order to determine the possibility of intoxication?
3. Whether the Commonwealth ... present[ed] sufficient evidence of Appellant's intoxication give that the uncontradicted [sic] testimony from the Appellant's expert was that Appellant could not have been impaired based on her prescription medication and no other evidence provided sufficient proof of impairment beyond a reasonable doubt?
4. Whether the great weight of the evidence warrants a new trial given that the evidence of intoxication was ... weak and that it failed to rebut Appellant's expert testimony that she was not impaired based on her prescription medication and other medical issues?
5. Whether the trial court erred in denying the Appellant's request
2 to enter the ARIDE manual into evidence given that it was a self-authenticating document pursuant to Pa.R.E. 902?1
BACKGROUND
This Court will now discuss a brief summary of the relevant factual
background information that will be referenced in the following "Discussion"
section of this opinion.
Immediately prior to trial, Counsel for the Defense made an oral motion
in limine to exclude testimony about the lack of convergence test and the results
of this test.' After argument from the Commonwealth, this Court noted that
there was a distinction between the HGN test and LOC test, but would make the
determination when and/or if the Commonwealth brought up the results of the 3 lack of convergence ("LOC") test during trial.
Then, the Commonwealth called Bradley Grove to testify. Grove testified
that on July 31, 2015 at around 9:20 p.m., he was driving north toward the
Wilson A venue and Ridge A venue Intersection. 4 The Defendant, who was the
1 Beside the term "whether" and the question marks, these matters are quoted from Appellant's Statement of Errors Complained Pursuant to PaR.A.P. 1925(b) (filed December 5, 2016). 2 N.T., Non-Jury Trial, August 24, 2016, pg. 4. 3 Id. at 6. 4 Id at 8-9. 3 driver of the vehicle ahead of Grove, started to tum left at the intersection, but
then made a U-Turn in the middle of the street and headed back in the direction
toward Grove.5 The Defendant's car moved all the way over to Grove's side of
the road and headed straight toward Grove.6 To avoid the Defendant's car,
Grove had to jump the curb along the right side, through the grass, and then off
the curb and back onto the road.7 Appellant had turned right, out of Grove's
lane after she was in Grove's lane.8 The Defendant's car had stopped as well,
and the Appellant was the driver of the. car.9 Grove indicated that there was
nothing in the roadway that would cause Appellant to drive in the wrong lane
toward Grove's car.10
Officer Joseph O'Brien was dispatched to the scene of this accident.
Officer O'Brien has training in DUI investigations, including initial training at
the academy and standardized field sobrietytraining and ARIDE training,
which is based on DUis where "there's an interaction of alcohol and drugs or
5 Id. at 9, 19. 6 Id. at 13-14. 7 Id. at 9. 8 Id. at 19-20. 9 Id. at 9, 17. IO]d. at 14.
4 11 combination of drugs. Officer O'Brien testified that there are multiple things
that are looked for in a DUI, including "any evidence that they are impaired by
their alcohol or drug or a combination of drugs and not anything else, whether
that be lack of sleep, being tired, exhaustion, physical impairments, or any other
mental issues."12 Specifically, he looks for "balance issues, coordination,
speech, any signs from the body, anything that going to dictate why they are
being impaired or why they are behaving a certain way."13 Someone's driving is
also taken into account."
In regard to Appellant's behavior, Officer O'Brien testified that she was
speaking softly and slowly to the point that it was hard for him to hear her, and
her speech was a little slurred.15 "[S]he couldn't stay still. She was swaying
back and forth, side to side, kind of in circles. She just couldn't keep her
balance as far as standing still."16 As Officer O'Brien would talk to her, her
voice would become quieter and trail off.17 As her voice was trailing off, "her
11 Id. at 23. 12 Id. at 24. 13 Id. at 24-25. 14 Id. at 25. 15 Id. at 28. 16 Id. ,1 Id.
5 head would go down, and her eyes would shut."18 According to Officer
O'Brien, this type of behavior is called "on the nod," and it is commonly seen
when a person is taking opiates. 19 In regard to the swaying, Officer O'Brien
said that there was a greater amount of swaying than what was normal for other
DUis that he had investigated previously. 20 In fact, Appellant was swaying two
to four inches in any one direction, to the point that Officer O'Brien was
concerned that she would fall.21
Appellant had told Officer O'Brien about medical issues that she had, but
Officer O'Brien did not think that her behavior was a direct result of the
medical issue or physical impairment, based on his training and "experience in
dealing with other people that are under the influence of medications and
drugs."22 When Officer O'Brien handed back her license, registration and
insurance, she reached to grab the papers, but she completely missed them
when she tried to grab them at first.23
18 Id. at 28-29. 19 Id. at 29. 20 Id. 21 Id. 22 Id. at 30. 23 Id. at 30-31. 6 Officer O'Brien also observed Appellant acting slowly, and smacking
and licking her lips like she had dry mouth.24 Officer O'Brien stated that a lot of
controlled substances and medications cause this.25 Appellant told Officer
O'Brien that she was taking the following: 100 microgram ofFentanyl (a
dermal patch that is a three-day extended release), which she took two days
prior; 4 milligram Dilaudid, 800 milligram Gabapentin, and Zoloft.26
Then, Officer O'Brien conducted field sobriety tests with the Appellant
because there were "multiple indications that she was under the influence of the
drugs and that they were playing a part in the bad driving that [he] had heard
about from [Grove] .... [A]s well as the behavior that [he] was seeing, it was
falling in line with what [he] would expect out of some of those medications,
especially the Fentanyl."27
Officer O'Brien conducted four field sobriety tests, including: the
Rhomberg balance test, the finger-to-nose test and the lack of convergence test,
24 Id. at 31. zs Id. 26 Id. at 32. 27 Id. at 33-34. 7 which focus on drug impairment, although they can show alcohol impairment."
Appellant failed the Rhomberg test, which is when the person is
instructed to pay attention to the instructions, and at that point in time, they are asked to on command place their head back, close their eyes with their hands by their sides, and estimate the passage of30 seconds [without counting out loud]. Once they believe 30 seconds have passed, put their head forward, open their eyes and saw the word done. "29
During the Rhomberg test, Appellant was swaying, counting out loud, and, after
20 seconds, Appellant opened her eyes." An acceptable response time is
between 25 and 35 seconds for that part of the test."
Appellant also failed the finger-to-nose test which is when the person is
instructed to "stand with their arms out to their sides and close their eyes" and 32 the officer tells the person to start with either their left or right hand. The
person then touches their nose with the corresponding hand's finger and then
put it immediately back out to the side, and then the other hand's finger touches
their nose and immediately puts it back out. 33 This process is then done a few
28 Id. at 34, 35. 29 Id. at 35-36. 30 Id. at 37. 31 Id. at 57. 32 Id. at 37. 33 Id.
8 times.34 During this test, Appellant did not follow the directions because she
would keep her hand on her nose rather than immediately putting her hand back
out."
As Officer O'Brien began to discuss the lack of convergence test,
Counsel for the Appellant objected saying that "it's essentially similar to the
HGN. It's an eye test, so I'm arguing that it's essentially a continuation of the
HGN test, which is inadmissible."36 This Court asked if counsel or the
Defendant had any case law and noted that HGN is different from the LOC test
and that it "is more than just nystagmus that's being tested."37Counsel for the
Defendant did not have any case law, and this Court noted that he has not "seen
anything that suggests that the lack of convergence test requires a degree of
expertise that [Officer O'Brien] doesn't have." 38 Though, this Court instructed
the Commonwealth to lay a foundation for Officer O'Brien's training and
experience with the LOC test.39
34 Id. at 37. 35 Id. at 37-38. 36 Id. at 38. 37 Id. at 38-39. 38 Id. at 39. 39 Id. at 39-40. 9 Officer O'Brien testified that the LOC test (and the Rhomberg test) was a
part of Officer O'Brien's training at the ARIDE school.t" Officer O'Brien
explained that the LOC test is for a certain drug that is being looked for, and
that the LOC test is "where you have a subject follow a stimulus, specifically
[Officer O'Brien] use[s] the tip of [his] pen, and ... instruct[s] the [person] to
follow the stimulus at all times until [Officer O'Brien] tell[s] them the test is
done.?" Specifically, the lack of convergent test is drug specific for
marijuana.42 The purpose of this test is to have the person's eyes track the
stimulus, and when the officer brings the pen close to the person's face, the 43 officer is observing whether the person's eyes converge or cross. At first,
Officer O'Brien was not able to complete the LOC test because Appellant "was l.' unable to follow the stimulus. [Officer O'Brien would] move the pen, and
[ Appellant would] follow it a second, and she'd just lose focus. "44
Officer O'Brien concluded that Appellant "was under the influence of
some sort of controlled substance or a multitude of different drugs, so she was
40 Id. at 40. 41 Id at 40-41. 42 Id. at 62. 43 Id. at 41. 44 Id.
10 placed under arrest for driving under the influence." This conclusion was based
on
everything that [he] observed, the report of the driving that she had, [his] interactions with her, her speech, her mannerisms, her behavior, her lack of balance, her lack of ability to perform simple tasks as far as following a stimulus, following instructions on tests, she just wasn't able to put that all together. [He] felt that it was more than a physical injury for'sure."
Officer O'Brien noted that he knew Appellant had balance issues due to
medical issues, but he clarified that "even when [he] just had her standing still
in one spot, not asking her to move, not asking her to manipulate anything, she
would just sway back and forth, side to side, in a circle. She wasn't able to keep
that position steady at all in any situation.?" Lastly, Officer O'Brien noted that
he would not have been at all comfortable in letting Appellant get back into her
car to drive that night.47
The defense brought Dr. Lawrence Guzzardi to testify, who was
stipulated to be an expert in the field of medical toxicology.48 Dr. Guzzardi is a
medical toxicologist who testified that if the Appellant was consistently taking
45 Ld. at 42. 46 Id. at 43. 47 Id. 48 Id. at 68. 11 her medication as prescribed (Fentanyl, Dilaudid, Gabapentin and Zoloft.), she
would have had built up a tolerance to the negative side effects of the drugs,
such that she would be able to drive without impairment at the time of the 49 incident in question. Dr. Guzzardi's conclusions assumed that Appellant
"actually took those substances at the levels that she indicated" to [the] officer,"
as well as medical records if they had specific notations.i" According to Dr.
Guzzardi, if Appellant had gotten the "prescriptions, and didn't take them,
diverted them for some way and suddenly started taking them on the day of the
accident. .. she would have been under the influence. "51 Also, if she had
consumed much more of the Dilaudid and Fentanyl patch, than what she told
Officer O'Brien, she could also have experienced negative effects.52
Dr. Guzzardi admitted that when he had observed and talked to Appellant
on the day of the trial, she did not have problems paying attention to Dr.
53 Guzzardi or problems communicating, although she was soft-spoken. Dr.
49 Id. at 69-85. 50 Id. at 95. 51 Id. at 96-97. 52 Id. at 97. 53 Id. at 99. 12 Guzzardi also testified that the medications that Appellant was taking can be
abused by patients, but Gabapentin abuse was unlikely.54 ...
Fentanyl is a narcotic, with negative potential side effects of sedation, an
inability to follow commands and sleepiness.55 Dilaudid is also a narcotic and
its negative side effects, like Fentanyl, include, in the initial phases, euphoria or
dysphoria, and sedation. 56 Gabapentin can also cause sedation in high
quantities,57 and Zoloft can also cause sedation when it is initially taken.58
The Commonwealth then called Officer O'Brien to testify again and
Officer O'Brien testified that Appellant was more attentive on the day of trial,
clearer, not trailing off with her sentences and that she was not "on the nod."59 ,;,.
During the post-sentence motion hearing, in addition to other arguments,
counsel for the Defense wanted the ARIDE manual entered into evidence,
which was not done during trial. 60 This Court questioned how the ARIDE
manual would get into evidence now and that the manual does not necessarily
54 Id. at 99. 55 Id. at 69. 56 Id. at 76. 57 Id. at 78. 58 Id at 83. 59 Id at 103. 60 Transcript of Post Sentence Motion hearing at 2, Commonwealth v. Forbes (Octobe; 6, 2016).
13 prove the Defense Counsel's point that the LOC test is just like the HGN test.61
Though, this Court was willing to admit the ARIDE manual into evidence if the
Commonwealth agreed to it, which the Commonwealth did not. 62 The
Commonwealth pointed out that Officer O'Brien could certainly testify about
how someone's pupils react to light or whether or not they cross, and that, even
if they were found to be the same, the introduction of the evidence would've
been harmless error since it was "similar enough to other evidence that was
presented, that it wouldn't have been prejudicial to the Defendant."63 This Court
again requested case law that the LOC test was not accepted by the scientific
community or that it was identical to the HGN test and that it should have a
scientific expert testify, which Defense Counsel admitted that there were not
any cases specific to the LOC test.64
The Commonwealth pointed out that the LOC test was in a different part
of the ARIDE manual compared to the HGN test.65 This Court also pointed out
that the Court should not just look at the manual (which came in with the post-
61 Id. at 5. 62 Id. 63 Id. at 6. 64 Jd. 65 Id. at 7.
14 sentence motion), and that it was an incorrect action to enter the manual into
evidence by just handing the manual to the Court the manual and telling the
Court to read it.66
The Court also pointed out that he "was fairly under whelmed by the
cumulative weight of Dr. Guzzardi's opinion and took into consideration all of
the facts that we heard, her behavior, her driving, her inability to perform even
simple tasks."67
Further, Defense Counsel did not get the trial attorney's stipulation for
the ARIDE manual to come in at the post-sentence motion hearing, and the
Commonwealth would not stipulate to this at the hearing, so the Court decided 68 not to admit the manual.
DISCUSSION
This Court will now address Appellant's grounds for the appeal, in order.
1. In response to Appellant'sfirst groundfor the Appeal, the Appellantnever requested a Frye Hearing, and, so the issue is waived.
Under the Frye test, "novel scientific evidence is admissible if the
methodology that underlies the evidence has general acceptance in the relevant
66 Id 67 Id. at 9. 68 Id. at 11. 15 scientific community.t''" In Commonwealth v. Einhorn, the Appellant claimed
that certain testimony wasn't admissible under Frye. However, the Appellant in
that case "never filed a motion in limine seeking to preclude ... [Dr.
Guzzardi 's] testimony on the basis of Frye, nor did he request a Frye
hearing.':" Further, during the trial in that case, the Appellant "attempted to
impeach [Dr. Guzzardi] through cross-examination in which trial counsel
questioned the acceptability of [Dr. Guzzardi's] utilized method; however, at no
time did Einhorn seek to preclude the testimony based on a Frye assessment
prior to this appeal.'!" The court concluded that this ground for the appeal was
waived because of the general rule, which is that "issues not raised in the lower
court are waived and cannot be raised for the first time on appeal."72
Based on a review of the record, here, Counsel for the Defense did not
even mention Frye until the Defense's Post-Sentence Motion. At no point in
trial did Defense counsel present testimony from medical experts about the
LOC's test general acceptance in the scientific community. As indicated in the
69 Commonwealth v. Einhorn, 911 A.2d 960, 974-975 (Pa. Super. Ct. 2006). 70 Id. at 975. 11 Id. 72 Id. (Citing Pa.R.A.P., Rule 302(a); the Court concluded that "Thus, because of Einhorn's failure to preserve this claim in the trial court, the issue is waived.")
16 Background section of this opinion, Counsel for the Defense's only materials
offered to support its conclusions about the LOC test's general acceptance in
the scientific community was an ARIDE manual, in which the LOC test was in
a separate section from the HGN test. Had Counsel for the Defense requested a
Frye hearing prior to trial, this Court may have entertained it. However, this
issue was waived because the Defense counsel never timely requested a Frye
hearing, and, so, this Court respectfully requests that the Superior Court find
this ground for the appeal meritless.
2. In response to Appellant's second ground for the appeal, this Court did not err when it admitted the lack of convergence test.
The standard on the admissibility of evidence is as follows:
'[T]he admissibility of evidence is a matter addressed to the sound discretion of the trial court and ... an appellate court may only reverse upon a showing that the trial court abused its discretion.' 'An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law.73
Here, as indicated in the Background section of this opinion, Appellant's
counsel had not provided any case law that supported that the lack of the 73 Commonwealth v. Cox, 115 A.3d 333, 336, appeal denied, 124 A.3d 308 (Pa. 2015) (internal citations omitted).
.t convergence test was the same as the HGN test, or that it was unacceptable in
the scientific community. In fact, as indicated above, Counsel for the Appellant
admitted that there was no case law that said it was the same.
During the HGN test,
the driver is asked to cover one eye and focus the other on an object (usually a pen) held by the officer at the driver's eye level. As the officer moves the object gradually out of the driver's field of vision toward his ear, he watches the driver's eyeball to detect involuntary jerking. The test is repeated with the other eye. By observing (1) the inability of each eye to track movement smoothly, (2) pronounced nystagmus at maximum deviation and (3) onset of the nystagmus at an angle less than 45 degrees in relation to the center point, the officer can estimate whether the driver's blood alcohol content (BAC) exceeds the legal limit of .10 percent.74
HGN test results are scientific evidence "based on the scientific principle
that alcohol consumption causes nystagmus .... Therefore, an adequate
75 foundation must be presented prior to admi;:sion ofHGN test results." For the
admission of the HGN test, the standard is as follows: "Pennsylvania law
requires that an adequate foundation be set forth establishing that HGN testing
74 Commonwealth v. Stringer, 451 Pa. Super. 180, 183, 678 A.2d 1200, 1201--02 (1996). ts Id.
18 is generally accepted in the scientific community, including the medical science 76 field of ophthalmology."
The LOC test, as described by Officer O'Brien in his testimony which is
found in the Background section of this opinion, is distinctive from the HGN
test and no testimony was put into the record stating that it was the same as the
HGN test or that it was not accepted by the scientific community, and Appellant
had not requested a Frye hearing to show that it was not accepted by the
scientific community. Unlike the HGN test, no case law establishes that the
LOC test results are deemed to be scientific evidence.
Further, there is no evidence that the admission of the LOC test involved
bias, ill will, partiality, prejudice, manifest unreasonableness or a
misapplication of law. Had the LOC test not been admitted, there was still
sufficient evidence to find that Appellant was intoxicated and would not have
changed the outcome of the case. As such, this Court respectfully requests that
the Superior Court find that this Court did not abuse its discretion to admit the
LOC test and find this ground for the appeal meritless.
19 -r 3. In response to Appellant's third ground for the appeal, the Commonwealth presented sufficient evidence of Appellant's intoxication to find Appellant guilty of DUI: Controlled Substance - Impaired Ability - P' Offense beyond a reasonable doubt
Appellant contests that the evidence of Appellant's intoxication was
insufficient to find Appellant guilty ofDUl. We find that there was sufficient
evidence. The standard used to analyze a sufficiency of the evidence claim is as
follows:
Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Where the evidence offered to support the verdict is in contradiction to the physical facts, in contravention to human experience and the laws of nature, then the evidence is insufficient as a matter of law. When reviewing a sufficiency claim the court is required to view the evidence in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.77
In proving its case, the Commonwealth may rely solely on circumstantial
evidence.78 The Commonwealth "need not preclude every possibility of
77 Commonwealth v. Widmer, 744 A.2d 745, 751 (P'a. 2000)(intemal citations omitted). 78 Commonwealth v. Brown, 48 A.3d 426, 430 (Pa. Super. Ct. 2012)(citing Commonwealth v. Markman, 916 A.2d 586, 598 (2007)). 20 innocence."79 If there is doubt about a Defendant's guilt, the doubt "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."80 As the fact-finder in a non-jury trial, the judge, "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."81
According to the Pennsylvania statute, DUI: Controlled Substance -
Impaired Ability - l" Offense is defined as follows:
An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances: (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. ·.
The Superior Court in Commonwealth v. Terrach summarized the
relevant case law:
In Williamson, a police officer found the driver slumped over the steering wheel and observed that she had bloodshot eyes, was
79 Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. Ct. 2015). 80 Id. 81 Commonwealth v. Lambert, 2002 PA Super 82, ,i 5, 795 A.2d 1010, 1014 (2002)
21 lethargic, and had slow, incoherent speech. Williamson, 962 A.2d at 1201-02. The driver failed two field sobriety tests. A urine screen was positive for prescription drugs. Id. at 1202. We held that testimony of erratic driving, coupled with proof that drugs were present, were together sufficient to prove that the operator's ability to drive safely was impaired. Id. at 1204. More recently, in Griffith, witness observations of erratic driving, police observations of the driver, failed field sobriety tests, and prescription drugs in the driver's system, together sufficed to prove driving under the influence. Griffith, 32 A.3d at 1233-34. Our Supreme Court held that the relevant inquiry was whether the drugs in the driver's system were impairing the person's ability to drive. The Court found that police observations and a failed sobriety test sufficed to satisfy the inquiry, even without expert testimony. Id. at 1240."82
When viewed in the light most favorable to the Commonwealth as the
verdict winner, we find there was sufficient evidence to find Appellant guilty of
DUI: Controlled Substance - Impaired Ability- l" Offense.
As indicated by the evidence in the Background section of this opinion,
there was sufficient evidence for this Court to find the Appellant guilty of this
offense. Specifically, Mr. Grove's testimony about Appellant's erratic driving
into Mr. Grove's side of the lane towards Grove, Officer O'Brien's testimony
about Appellant's behavior and inability to complete any of the sobriety tests,
and Appellant's admission to Officer O'Brien that she was taking those
82 Commonwealth v. Tarrach, 2012 PA Super 82, 42 A.3d 342, 346 (2012). 22 prescriptions.
This Court acknowledges that Appellant was on multiple medications
and had physical problems that may have affected her balance. However,
Officer O'Brien's testimony that Appellant had balance problems standing still
to the degree that she was swaying almost four inches while standing still, her
inability to pick up a paper and other behaviors indicated narcotics use.
Interestingly Officer O'Brien had also pointed out that Appellant's behavior
was worse than many DUI's that Officer O'Brien had observed. Based on all of
the evidence, Appellant was too impaired to drive.
This Court did take into careful consideration Dr. Guzzardi's testimony,
however his testimony was underwhelming. As discussed in the Background
section of this opinion, Dr. Guzzardi indicated that the variety of medications
that Appellant was on could cause impairment to a person when driving if they
had not built up a tolerance to the medication, if they had stopped the
medication and resumed at a later time, or if they had taken more than the
recommended dose. Dr. Guzzardi could not testify to how much Appellant
was, in actuality, taking of each medication or whether or not she was taking
the medication consistently such that she would have a tolerance to the
23 medication's side effects.
Appellant was clearly taking multiple drugs and Appellant's behavior
and actions, as testified to by Grove and Officer O'Brien clearly indicated that
Appellant was impaired. Based on all of the evidence, there was sufficient
evidence to conclude that Appellant's combination of medication rendered
Appellant incapable of driving safely, and thus there was sufficient evidence to
find Appellant guilty of this offense beyond a reasonable doubt.
4. As to Appellant's fourth ground for the appeal, the finding of guilty was not against the weight of the evidence on the DUI offense.
Appellant contends that finding Appellant guilty of DUI went against the
weight of the evidence. This Court finds that the conclusion did not go against
the weight of the evidence. A challenge to the weight of the evidence is distinct
from a challenge to the sufficiency of the evidence.83 The standard for weight of
the evidence challenges in non-jury trials is as follows:
83 Commonwealth v. Widmer, 744 A.2d at 751 (stating that "(a] claim challenging the sufficiency of the evidence, if granted, would preclude retrial under the double jeopardy provisions of the Fifth Amendment to the United States Constitution, and Article I, § l O of the Pennsylvania Constitution, whereas a claim challenging the weight of the evidence if granted would permit a second trial.") (internal citations omitted).
24 A claim alleging the verdict was against the weight of the evidence is addressed to the discretion of the trial court. Accordingly, an appellate court reviews the exercise of the trial court's discretion; it does not answer for itself whether the verdict was against the weight of the evidence. It is well settled that the [fact-finder] is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses, . and a new trial based on a weight of the evidence claim is only warranted where the [factfinder's] verdict is so contrary to the evidence that it shocks one's sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion.84
As described above, the evidence was sufficient to support the
convictions, and there is no reasonable argument that this Court mis-weighed
the evidence or abused its discretion. It was within this Court's discretion
whether to find the testimony of the witnesses credible. Therefore, the Court
will not disturb the verdict.
84 Commonwealth v. Karns, 2012 PA Super 154, 50 A.3d 158, 165 (2012) (quoting Commonwealth v. Houser, 610 Pa. 264, 276, 18 A.3d 1128, 1135-36 (2011)).
25 . ,.
5. In response to Appellant's fifth ground for the appeal, this court did not err when it did not admit the ARJDE manual.
Under the Pennsylvania Rules of Evidence, "the following item ... of
evidence is self-authenticating; they require no extrinsic evidence of
authenticity in order to be admitted: ... "official Publications. A book,
pamphlet, or other publication purporting to be issued by a public authority."85
Like the second ground for the appeal, the s~andard on the admissibility of
evidence is as follows:
'[T]he admissibility of evidence is a matter addressed to the sound discretion of the trial court and ... an appellate court may only reverse upon a showing that the trial court abused its discretion.' 'An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest 86 unreasonableness, or misapplication of law.
As the Background section in this opinion discusses, the manual does not
necessarily prove that the HGN test and LOC test were the same, and defense
counsel's method to admit the manual into evidence was improper. While the
Court was willing to enter it into evidence if the Commonwealth agreed, the
85 Pa. R. Evid. 902. 86 Commonwealth v. Cox, 115 A.3d 333, 336, appeal denied, 124 A.3d 308 (Pa. 2015) (internal citations omitted).
26 Commonwealth did not. The Defense Counsel could not provide any case law
that the HGN test and LOC test were the same and the Commonwealth even
pointed out that those tests were in separate sections in the ARIDE manual.
Here, it was in this Court's discretion whether or not to admit the ARIDE
manual into evidence after the trial had occurred. Denying the admission into
evidence of the ARIDE manual did not involve bias, ill will, partiality,
prejudice, manifest unreasonableness or a misapplication of law. For the above
reasons, this Court respectfully requests that the Superior Court find this ground
for the appeal meritless.
CONCLUSION
In conclusion, this Court respectfully requests that the Superior Court
find Appellant's first ground for the appeal meritless and to affirm the jury
verdict.
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