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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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