Com. v. Speece, N.

J-A20026-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

NEAL SPEECE,

Appellant No. 3133 EDA 2014

Appeal from the Judgment of Sentence October 8, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0005772-2012

BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 21, 2015

Appellant, Neal Speece, appeals from the judgment of sentence

entered October 8, 2014, following a bench trial where he was convicted of

driving under the influence of alcohol (“DUI”), speeding, and failure to stop

at a red light. We affirm.

The trial court summarized the facts of the crime as follows:

On February 12, 2012, Officer Matthew Tobin
(“Officer Tobin”) was on patrol duty, dressed in full police
uniform, operating an unmarked police vehicle in the Oaks
section of Upper Providence Township, Montgomery County,
Pennsylvania. At approximately 2:40 A.M., Officer Tobin was
stopped at a red traffic light on Egypt Road when he observed a
black vehicle, operated by Appellant, accelerate in front of a
tractor trailer truck through a left turn only lane and proceed
through the red traffic light, heading westbound on Egypt Road.
Officer Tobin sped past the truck in order to catch up with the
vehicle. Based on his belief that the vehicle was speeding,
Officer Tobin paced the vehicle for a minimum of three tenths of
a mile at 55 miles per hour (“mph”) in a posted 35 mph zone,
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using a calibrated speedometer that was approved for accuracy
by the Department of Transportation. While tracking the speed
of the vehicle, Officer Tobin observed the vehicle drive on the
shoulder of Egypt Road as well as cross the double yellow lane
divider three times. After following Appellant for about a half of
a mile, Officer Tobin activated his emergency lights and sirens to
conduct a vehicle stop. Because Officer Tobin was driving an
unmarked car, he positioned himself where he could see
Appellant’s face and Appellant could see his face. Appellant
drove approximately one half mile with Officer Tobin behind him
before eventually pulling over.

Officer Tobin approached the driver side of the vehicle,
introducing himself to Appellant and explaining the reason for
the stop. Appellant appeared confused and did not recall
accelerating past the tractor trailer truck or driving through a red
light. When Appellant spoke, Officer Tobin smelled a strong odor
of alcohol and noticed that Appellant had red glassy eyes and
slurred speech. Officer Tobin asked Appellant if he had been
drinking, and Appellant slurred, “No.” Officer Tobin performed a
preliminary-arrest breath test (“PBT”) to verify if Appellant had
been drinking. The Alco-Sensor PBT, approved by the
Department of Health, confirmed Appellant had consumed
alcohol before driving.

Thereafter, Officer Tobin asked Appellant to step out of his
vehicle so he could administer field sobriety tests. Appellant
performed the alphabet recital test, finger-to-nose test, and a
finger-count test after watching a demonstration of each test.
When Officer Tobin asked Appellant to attempt the alphabet
recital test without singing, he observed Appellant sing and slur
the alphabet. During the finger-to-nose test, Officer Tobin
observed Appellant miss the tip of his nose on numbers 1, 2, 3
and 5. Officer Tobin testified that Appellant failed to successfully
complete the finger-count test as well.

Officer Tobin placed Appellant in custody and transported
him to Phoenixville Hospital. Officer Tobin read Appellant the

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O’Connell Warnings.1 When Officer Tobin asked Appellant if he
would consent to the blood test, Appellant sat in silence, not
responding. Officer Tobin warned Appellant that his silence
would constitute a refusal. Appellant then asked for an attorney.
Officer Tobin read the final paragraph of the O’Connell Warnings
again, informing Appellant that his request for an attorney and
his silence constituted a refusal. Appellant again asked to speak
with an attorney. Officer Tobin deemed Appellant’s request for
an attorney as his refusal to consent to the requested blood test
and ended the procedure.
1
The phrase “O’Connell Warnings” means the officer
must specifically inform a motorist that his driving
privileges will be suspended for one year if he
refuses chemical testing, and that the rights
provided by the United States Supreme Court’s
decision in Miranda v. Arizona, 384 U.S. 436 (1966),
do not apply to chemical testing. See
Commonwealth Dept. of Transp. Bureau of Traffic
Safety v. O’Connell, 555 A.2d 873, 877-78 (Pa.
1989) . . .

Trial Court Opinion, 12/16/14, at 1–3.

Appellant was charged with driving under the influence of alcohol

(“DUI”), speeding, and failure to stop at a red light. He filed an omnibus

pretrial motion that included a motion to suppress on July 8, 2013.

Following a hearing on May 26, 2014, the trial court denied the suppression

motion on July 16, 2014. On July 30, 2014, alleging the appearance of

impropriety, Appellant filed a motion to recuse the trial judge. The trial

court denied the recusal motion on August 5, 2014. As noted, the trial court

found Appellant guilty of all charges at a bench trial on October 8, 2014.

Appellant filed this appeal on November 7, 2014. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

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Appellant raises the following issues for our review:

I. Did the trial court abuse its discretion when it denied
Appellant’s motion to recuse when the court made a
determination, prior to the commencement of trial, as to
the ultimate issue of Appellant’s guilt and as to the
credibility of the officer and the lack of veracity on the part
of Appellant?

II. Did the trial court abuse its discretion when it precluded
Appellant’s expert witness from testifying as to the
reliability and accuracy of non-standardized field sobriety
tests versus the national standardized field tests approved
by the National Highway and Transportation Authority
where Sergeant Tobin’s failure to use these tests called into
question his conclusion that Appellant was incapable of
safely operating a motor vehichle [sic] on the night in
question?

III. Was the evidence sufficient to support Appellant’s
conviction for driving under the influence when the sole
evidence of his alleged impairment was the officer’s belief
that Appellant had improperly performed non-standardized
field sobriety tests and the tests were invalidated by
unrebutted expert witness testimony?

Appellant’s Brief at 4.

Appellant first argues that the trial court abused its discretion in

denying his motion to recuse. He suggests that the trial court’s findings in

denying the suppression motion reveal that the court “had already concluded

that [A]ppellant was impaired at the time of the incident.” Appellant’s Brief

at 10. Thus, he avers that the trial court was predisposed to believe

Sergeant Tobin, the Commonwealth’s sole witness. Id. at 12. Appellant

asserts that credibility was the central issue in the case, “which required the

court to assess whether Sergeant Tobin or [A]ppellant were testifying

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truthfully in recounting the events that transpired on February 12, 2012.”

Id. at 13.

In support, Appellant cites Commonwealth v. Lewis, 460 A.2d 1149

(Pa. Super. 1983), wherein we stated:

The Pennsylvania Supreme Court has suggested that “the better
practice in a multi-judge county would be to have the trial
conducted by someone other than the judge who presided over
the Suppression Proceedings particularly where there is a waiver
of jury accepted.” Commonwealth v. Paquette, 451 Pa. 250,
258, 301 A.2d 837, 841 (1973). The Court again articulated a
preference for this practice in Commonwealth v. Goodman, 454
Pa. 358, 362, 311 A.2d 652, 654 (1973), as it concluded “that a
judge should honor a request for recusation where prejudicial
information is received in a pre-trial proceeding that would be
otherwise inadmissible during the trial of the cause.” Whether a
trial judge should recuse himself thus depends upon “the type of
evidence that the judge hears; if the evidence is inadmissible
and is of a highly prejudicial nature, the judge should recuse
himself or declare a mistrial if it is too late for recusal.”
Commonwealth v. Lee, 262 Pa. Super. 280, 291, 396 A.2d 755,
760 (1978). The judge should also recuse himself whenever
there is substantial doubt as to his ability to preside impartially.
Commonwealth v. Boyle, 498 Pa. 486, 490, 447 A.2d 250, 252
(1982). The burden to show prejudice, however, is on the party
seeking recusal. Commonwealth v. Council, 491 Pa. 434, 421
A.2d 623 (1980); Commonwealth v. Martin, 307 Pa. Super. 118,
452 A.2d 1066 (1982). “If the evidence is admissible or not of a
highly prejudicial nature, recusal is not required”,
Commonwealth v. Lee, supra, 262 Pa. Super. at 291, 396 A.2d
at 760, and while it may be the better practice to have a
different judge preside over trial than preside over pre-
trial proceedings, such a practice is not constitutionally
required and has not been made the basis for setting
aside a verdict reached in an otherwise proper trial.
Commonwealth v. Baxter, 282 Pa. Super. 467, 422 A.2d 1388
(1980). Commonwealth v. Williams, 269 Pa. Super. 544, 410
A.2d 835 (1979). This principle appears to be based on “the
prevailing view that judicial fact-finders are capable of
disregarding most prejudicial evidence.” Commonwealth v.

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Council, supra 491 Pa. at 439, 421 A.2d at 625 (footnote
omitted).

Lewis, 460 A.2d at 1151–1152 (emphasis added).

The Commonwealth counters that the Pennsylvania Rules of Criminal

Procedure require the trial court to opine on witnesses’ credibility after a

suppression hearing. Commonwealth Brief at 8.1 Further, it avers that a

suppression court “is entitled to believe all, some, or none of the evidence

presented.” Id. Thus, the Commonwealth maintains that because Appellant

chose to testify at the suppression hearing, and Pa.R.Crim.P. 581 requires

the court, inter alia, to issue specific credibility decisions, Appellant is not

entitled to relief merely because he “voluntarily subject[ed] himself to the

trial court’s credibility determinations.” Id.

In support of its refusal to recuse, the trial court stated that its

suppression findings “were limited to the reasonableness of Officer Tobin’s

actions.” Trial Court Opinion, 12/16/14, at 11. It noted that the relevant

inquiry at suppression was whether Officer Tobin had reasonable suspicion of

____________________________________________

1
Pa.R.Crim.P. 581, “Suppression of Evidence,” provides, in relevant part:

(I) At the conclusion of the hearing, the judge shall enter on the
record a statement of findings of fact and conclusions of law as
to whether the evidence was obtained in violation of the
defendant’s rights, or in violation of these rules or any statute,
and shall make an order granting or denying the relief sought.

Pa.R.Crim.P. 581(I).

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criminality, and it did not consider a determination of guilt beyond a

reasonable doubt at that point, but saved that assessment for trial. Id.

Our Supreme Court has discussed the standards governing recusal, as

follows:

“A trial judge should recuse himself whenever he has
any doubt as to his ability to preside impartially in a
criminal case or whenever he believes his
impartiality can be reasonably questioned.”
Commonwealth v. Goodman, 454 Pa. 358, 311
A.2d 652, 654 (1973). It is presumed that the judge
has the ability to determine whether he will be able
to rule impartially and without prejudice, and his
assessment is personal, unreviewable, and final.
Commonwealth v. Druce, 577 Pa. 581, 848 A.2d
104, 108 (2004). “Where a jurist rules that he or
she can hear and dispose of a case fairly and without
prejudice, that decision will not be overturned on
appeal but for an abuse of discretion.”
Commonwealth v. Abu–Jamal, 553 Pa. 485, 720
A.2d 79, 89 (1998).

Commonwealth v. Blakeney, 946 A.2d 645, 662 (Pa. 2008)
(alteration in original). Additionally, “it is the burden of the
party requesting recusal to produce evidence establishing bias,
prejudice or unfairness which raises a substantial doubt as to the
jurist’s ability to preside impartially.” Commonwealth v.
White, 589 Pa. 642, 910 A.2d 648, 657 (2006) (quoting
Commonwealth v. Abu–Jamal, 553 Pa. 485, 720 A.2d 79, 89
(1998)).

Commonwealth v. Tedford, 960 A.2d 1, 55–56 (Pa. 2008). Without

doubt, our standard of review of a trial court’s determination not to recuse is

exceptionally deferential, because we recognize that our trial judges are

“honorable, fair and competent.” Commonwealth v. Harris, 979 A.2d

387, 391 (Pa. Super. 2009); see also Commonwealth v. Postie, 110 A.3d

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1034, 1037 (Pa. Super. 2015). Thus, “although we employ an abuse of

discretion standard, we do so recognizing that the judge himself is best

qualified to gauge his ability to preside impartially.” Harris, 979 A.2d at

392. Moreover:

The party who asserts that a trial judge should recuse bears the
burden of setting forth specific evidence of bias, prejudice, or
unfairness. “Furthermore, a decision by the trial court against
whom the plea of prejudice is made will not be disturbed absent
an abuse of discretion.”

Postie, 110 A.3d at 1037 (quoting Harris, 979 A.2d at 392). The mere

participation by the trial judge in an earlier stage of the proceedings does

not provide a per se basis for requiring recusal of the trial judge. Postie,

110 A.3d at 1038.

Herein, Appellant has not met the burden for demonstrating partiality,

bias, or an abuse of discretion. First, we note that Appellant paints his

argument with broad strokes that he fails to support. Appellant suggests the

trial court “went out of its way to reinforce the Officer’s conclusion that

[A]ppellant was ‘in fact’ intoxicated,” Appellant’s Brief at 15, but he does not

support the claim with citation to the record. He continues that in making

this “unwarranted premature decision,” the trial court ignored Appellant’s

testimony “regarding his perceived performance on the tests,” but does not

include citation to what testimony was ignored. Id. Appellant accuses the

trial court of “wholesale rejection of the un-controverted trial testimony from

the defense expert, Mr. Gilbert Snowden,” who allegedly “challenged

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whether the non-standardized [field sobriety] tests . . . were performed

accurately,” yet he fails to identify in the record both the testimony allegedly

foregone and the trial court’s alleged “wholesale rejection.” Id. Appellant

accuses the trial court of “flout[ing] without reason or explanation the

expert’s averments on the sole . . . issue he was permitted to address,” id.,

but he fails to elucidate such actions in the record. As we stated in

Commonwealth v. Harris, 979 A.2d 387 (Pa. Super. 2009), “An appellate

brief must provide citations to the record and to any relevant supporting

authority.” Id. at 393 (citing Commonwealth v. Einhorn, 911 A.2d 960,

970 (Pa. Super. 2006)). See also Commonwealth v. Tielsch, 934 A.2d

81, 93 (Pa. Super. 2007); Commonwealth v. Judd, 897 A.2d 1224, 1233

(Pa. Super. 2006). In short, Appellant fails to support his allegations of bias.

Nevertheless, we consider Appellant’s claim. Appellant argues that the

above evidence supports his averment of the “trial court’s unequal treatment

toward the respective parties,” which equates to evidence of “why recusal

was requested and . . . why it was warranted.” Appellant’s Brief at 15. In

actuality, the above allegations go to the propriety of the denial of the

motion to suppress itself, not the motion to recuse. The succinct issue

before us is whether the trial court, having entertained the motion to

suppress, should have recused itself from judging Appellant’s guilt or

innocence of the charged offenses.

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As noted, over forty years ago, our Supreme Court advised that “the

better practice in a multi-judge county would be to have the trial conducted

by someone other than the judge who presided over the Suppression

Proceedings particularly where there is a waiver of jury accepted.”

Paquette, 301 A.2d at 841. Thirty-two years ago, in the case upon which

Appellant relies, Lewis, 460 A.2d 1149, this Court reiterated that while it

may be the better practice to have a different judge preside over trial than

preside over pretrial proceedings, it is not constitutionally required and does

not require setting aside a verdict reached in an otherwise proper trial. Id.

at 1152 (citing Baxter, 422 A.2d 1388). In forty years, our appellate courts

have not further refined the practice, and it stands as one that is preferred,

not required.

Appellant ignores the trial court’s explanation and fails to credit the

presumption that the judge has the ability to determine whether she can

rule impartially and without prejudice. Druce, 848 A.2d at 108. The trial

judge ruled that she could hear and dispose of the case fairly and without

prejudice. As stated by the trial court:

This [c]ourt has stated on the record that the findings of
fact contained within the Suppression Order dated July 16, 2014
were limited to the reasonableness of Officer Tobin’s actions.
The relevant inquiry, at suppression, was whether Officer
Tobin had reasonable suspicion of criminality. At the time
of the Suppression hearing, this [c]ourt did not consider a
determination of guilt or the reasonable doubt standard. This
[c]ourt waited until the subsequent hearing of trial to apply a
higher burden of proof to facts presented as evidence.
Accordingly, this [c]ourt used its full discretion in denying

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Appellant’s Motion for Recusal, and requests that said
determination is not disturbed.

Trial Court Opinion, 12/16/14, at 11 (emphasis added). Nothing Appellant

has cited persuades us that the trial court’s determination was an abuse of

its discretion. The trial judge concluded that she could preside impartially.

Our review reveals nothing untoward; Appellant’s contention regarding

recusal fails to demonstrate that his trial was unfair or impartial.

We reiterate that “[t]he mere participation by the trial judge in an

earlier stage of the proceeding neither suggests the existence of actual

impropriety nor provides a basis for a finding of the appearance of

impropriety.” Commonwealth v. Sirbaugh, 500 A.2d 453, 459 (Pa. Super.

1985). It is presumed that “[j]udicial fact-finders are capable of

disregarding prejudicial evidence.” Id. at 460. While our case law

recognizes the potential for prejudice, there remains a strong presumption

that a trial judge will ordinarily be capable of ignoring prejudicial, even

inadmissible, evidence. Appellant has failed to rebut this presumption.

Thus, in light of our deferential standard of review, we are satisfied

that the trial court did not abuse its discretion in denying Appellant’s motion

to recuse. Accordingly, we decline to hold that the trial judge abused her

discretion in refusing Appellant’s request that she recuse from Appellant’s

trial.

Appellant’s second issue avers that the trial court abused its discretion

in limiting Appellant’s expert witness’s testimony regarding the reliability and

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accuracy of the field-sobriety tests administered by Officer Tobin. The tests

the officer administered were “an alphabet recital, finger to nose, and a

finger count.” N.T. (Suppression), 5/28/14, at 15. Appellant claims that the

only evidence proffered to support the contention that Appellant was

intoxicated was Officer Tobin’s testimony, and Officer Tobin utilized non-

standard field-sobriety testing as opposed to the tests endorsed by the

National Highway Traffic Safety Administration (NHTSA).2 Appellant’s Brief

at 16. Appellant maintains that Officer Tobin used the non-standard tests

despite the fact that he was trained in “the more reliable testing

techniques.” Appellant’s Brief at 16.

Appellant’s argument3 is premised on the fact that the preliminary

breath test at the scene showed he had a 0.07% BAC, which is below the

legal limit. Appellant’s Brief at 17. Appellant’s expert, Gilbert Snowden

____________________________________________

2
The tests not administered were the Horizontal Gaze Nystagmus test, the
Walk and Turn test, and the One Leg Stand. Trial Court Opinion, 12/16/14,
at 12 n.3.
3
Once again, Appellant makes broad statements concerning rulings,
proffers, and testimony at trial wholly without citation to the record.
Appellant’s Brief at 17–18. Thus, we could find the issue waived.
Commonwealth v. Williams, 980 A.2d 667 (Pa. Super. 2009) (stating
defendant waived argument on appeal where he failed to indicate in his brief
where the issue was preserved in trial court); Pa.R.A.P. 2119 (c) (stating if
reference is made to any matter appearing in the record, argument must set
forth place in the record where the matter appears). “It is not this Court’s
responsibility to comb through the record seeking the factual underpinnings
of an appellant’s claim.” Commonwealth v. Samuel, 102 A.3d 1001, 1005
(Pa. Super. 2014).

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(“Snowden”), a retired Pennsylvania State Trooper, issued a report in which

he noted that the standard NHTSA tests have a “combined degree of

reliability . . . of 91% where an individual has a blood alcohol content level

of .08%.” Appellant’s Brief at 17. Appellant maintains that the court

“improperly excluded the vital testimony comparing and contrasting the

aforementioned testing techniques.” Id. at 17–18.

The Commonwealth responds that the evidence was not relevant and

maintains that the issue before the court was whether Appellant drove his

vehicle after drinking a sufficient amount of alcohol to render him incapable

of safe driving. Commonwealth’s Brief at 11–12 (citing 75 Pa.C.S.

§ 3802(a)(1)). In the offer of proof for the expert, Appellant’s counsel

asserted that Snowden’s testimony would address “the appropriate tests

that should have been done in this matter as well as offer his opinion as to

the manner in which the testing . . . was done in this case.” N.T., 10/8/14,

at 99. The trial court apparently had proscribed the first part of the

testimony relating “to the national standards. . . .” Id. The Commonwealth

suggests that testimony regarding tests that Officer Tobin did not perform

“would not tend to prove or disprove any material fact at the trial.”

Commonwealth Brief at 12.

“A trial court has broad discretion to determine whether evidence is

admissible,” and a trial court’s ruling regarding the admission of evidence

“will not be disturbed on appeal unless that ruling reflects manifest

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unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to be clearly erroneous.” Commonwealth v. Huggins, 68 A.3d

962, 966 (Pa. Super. 2013), appeal denied, 80 A.3d 775 (Pa. 2013);

Commonwealth v. Minich, 4 A.3d 1063 (Pa. Super. 2010) (citations and

quotations omitted). We review all matters touching upon the admission of

evidence for an abuse of discretion. Commonwealth v. Ali, 112 A.3d

1210, 1217–1218 (Pa. Super. 2015). “An abuse of discretion is not merely

an error of judgment, but is rather the overriding or misapplication of the

law, or the exercise of judgment that is manifestly unreasonable, or the

result of bias, prejudice, ill-will or partiality, as shown by the evidence of

record.” Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013),

appeal denied, 87 A.3d 319 (Pa. 2014). “[A]n erroneous ruling by a trial

court on an evidentiary issue does not necessitate relief where the error was

harmless beyond a reasonable doubt.” Commonwealth v. Travaglia, 28

A.3d 868, 874 (Pa. 2011). Moreover, “The admission of expert testimony is

a matter of discretion for the trial court and will not be remanded, overruled

or disturbed unless there was a clear abuse of discretion.” Commonwealth

v. Carter, 111 A.3d 1221, 1222 (Pa. Super. 2015).

The trial court ruled that testimony regarding the foregone tests was

not relevant. It concluded as follows:

Based on his qualifications, this Court permitted
Mr. Snowden to testify regarding proper procedures for
administering the field sobriety tests employed by Officer Tobin
on February 13, 2012. The accuracy of the field sobriety test[s],

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as administered, is undoubtedly a highly relevant issue[,] and
this Court found Mr. Snowden’s testimony helpful. This Court’s
decision to allow certain parts of the expert testimony, while
excluding others, was motivated by concern for efficiency, clarity
and the law, not by malice or prejudice.

Trial Court Opinion, 12/16/14, at 13.

Before any evidence is admissible in a criminal proceeding, it must be

competent and relevant. Commonwealth v. Freidl, 834 A.2d 638, 641

(Pa. Super. 2003).

Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612
(2008). Relevant evidence is “evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
it would be without the evidence.” Pa.R.E. 401. “Evidence is
relevant if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding a
material fact.” Commonwealth v. Drumheller, 570 Pa. 117,
135, 808 A.2d 893, 904 (2002), cert. denied, 539 U.S. 919,
123 S.Ct. 2284, 156 L.Ed.2d 137 (2003). “Evidence that is not
relevant is not admissible.” Pa.R.E. 402.

Commonwealth v. Williams, 48 A.3d 1265, 1268-1269 (Pa. Super. 2012).

The trial court permitted Snowden’s qualification as an expert and

allowed him to discuss why he believed the non-standard techniques were

incorrectly administered. Snowden testified that “the alphabet test is part of

the standardized field sobriety test course.” N.T., 10/8/14, at 111. He

described the test as a pre-exit test, i.e., one done while the person is still in

the vehicle “to try to determine whether to get that person out of the car.”

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Id. He acknowledged, however, that “it doesn’t always have to be done that

way.” Id. at 113.

Regarding the finger-to-nose test, Snowden testified that the test

currently is not “still” taught in the standardized field-sobriety test course,

thereby implying that at one time, it indeed was taught. N.T., 10/8/14, at

116. Snowden then stated, “Sergeant Tobin is a very seasoned, experienced

officer and this is maybe a test he has used . . . over the years, but when

you use one of the nonstandardized field sobrieties, you have to be aware of

certain factors that can affect reliability of those tests.” Id. One of the

factors Snowden described was that “some officers would make [that test]

too complicated,” but “to [Sergeant Tobin’s] credit” “he didn’t complicate it

that way,” which “helps the reliability of that test.” Id. Snowden testified

that the officer did ask Appellant to close his eyes when performing the test,

which is not standard. Id.

Snowden also testified that the third test Sergeant Tobin administered,

the “1-to-5 finger count,” is “part of the standardized field sobriety tests

also.” N.T., 10/8/14, at 118–119. He described it as a pre-exit test and

opined that Sergeant Tobin administered it “contrary to the way it’s taught”

in that the officer asked Appellant to count from one to five “and back down

to one.” Id. at 119–121.

On cross-examination, Snowden admitted there is “no requirement to

do any type of field sobriety test.” N.T., 10/8/14, at 121–122. Snowden

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further agreed that other than the current three standardized field-sobriety

tests, which are the horizontal gaze nystagmus test, the walk-and-turn test,

and the one-leg-stand test, there are three other acceptable tests that are

taught: “the finger count [Sergeant Tobin] gave, the alphabet test [he

gave], and the count-backwards test.” Id. at 123. Snowden admitted that

while the alphabet test is classified as a pre-exit test, it “doesn’t always have

to be administered pre-exit,” because “there are times you might be at an

accident scene and the guy is already out the car.” Id. at 124. Snowden

also testified that the “majority of the times [he has] testified since 1995

has been for the defense.” Id. at 125.

Our review of the complete record compels our conclusion that the

trial court did not abuse its discretion regarding the admission and limitation

of Snowden’s testimony. He testified about the current and former teaching

of field-sobriety tests, explained his opinion of the standard methods of

administration of the tests, and critiqued Sergeant Tobin’s administration of

them. As found by the trial court, “a detailed analysis of the proper

procedures for three field sobriety tests not used in this case” would not

be helpful “in determining if Appellant was impaired.” Trial Court Opinion,

12/16/14, at 12 (emphasis in original). Thus, we conclude this issue does

not entitle Appellant to relief.

Appellant’s third issue challenges the sufficiency of the evidence.

Appellant’s sole reference to the alleged insufficiency of the evidence in his

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concise statement filed pursuant to Pa.R.A.P. 1925 was as follows: “The

trial court erred in finding [Appellant] guilty beyond a reasonable doubt as

the Commonwealth’s proofs were insufficient as a matter of law.” Statement

of Matters Complained of on Appeal, 11/25/14, at 5. The trial court

concluded that Appellant’s concise statement failed to specify the elements

upon which the evidence was insufficient and that the issue was not properly

preserved for appeal. Trial Court Opinion, 12/16/14, at 13.

In Commonwealth v. Garang, 9 A.3d 237 (Pa. Super. 2010), this

Court reiterated that when challenging the sufficiency of the evidence on

appeal, the appellant’s Rule 1925(b) statement must “specify the element or

elements upon which the evidence was insufficient” in order to preserve the

issue for appeal. Id. at 244 (citing Commonwealth v. Williams, 959 A.2d

1252, 1257 (Pa. Super. 2008), and Commonwealth v. Flores, 921 A.2d

517, 522–23 (Pa. Super. 2007)). See also Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa. Super. 2009) (“Appellant not only failed to specify which

elements he was challenging in his [Rule] 1925 statement, he also failed to

specify which convictions he was challenging.”); Samuel, 102 A.3d at 1005

(“In order to develop a claim challenging the sufficiency of the evidence

properly, an appellant must specifically discuss the elements of the crime

and identify those which he alleges the Commonwealth failed to prove.”).

In response to the trial court’s finding of waiver, Appellant cites

Commonwealth v. McCree, 857 A.2d 188 (Pa. Super. 2004), where this

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Court acknowledged the lack of specificity in the appellant’s sufficiency claim

but addressed it. He maintains that he was convicted only of one non-

summary charge, DUI, and:

[t]he single simple issue before the lower court was whether
[A]ppellant was operating his motor vehicle while under the
influence of alcohol. And, because there was no chemical
evidence in this case, the entire trial revolved around only one
specific portion of the Pennsylvania DUI statute: general
impairment.

Appellant’s Brief at 24.

We are not persuaded that this contention precludes waiver herein. In

his brief, Appellant presents the following three bases regarding sufficiency

of the evidence: the trial court disregarded Snowden’s unrebutted

testimony regarding the field tests administered by Sergeant Tobin, which is

a rehash of Issue II; the trial court failed to state on the record the reasons

why it disregarded Snowden’s testimony; and there was a lack of

corroborative evidence of intoxication in the record. Appellant’s Brief at 28–

33. None of these claims was suggested by Appellant’s Rule 1925(b)

statement or implied in it. Thus, we conclude this claim is waived.

Judgment of sentence affirmed.

Judge Wecht joins the memorandum.

Judge Donohue concurs in the result.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/21/2015

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