Com. v. Forbes, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

v.

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
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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... ==
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q:g25(a)
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Opinion.
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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).

17

.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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